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Full text of "The law of the sea : some recent developments, with particular reference to the United Nations Conference of 1958"

For cataloguing and reference purposes this 
is Volume 53 of the Naval War College Blue 
Book Series. 



NAVAL WAR COLLEGE 
NEWPORT, RHODE ISLAND 



INTERNATIONAL LAW STUDIES 

1959-1960 



THE LAW OF THE SEA: 
SOME RECENT DEVELOPMENTS 

(With Particular Reference to the United Nations 
Conference of 1958) 

by 
Carl M. Franklin 



$ 



NAVPERS 15031 

Volume LIII 



UNITED STATES 

GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1961 



For sale by the Superintendent of Documents, U.S. Government Printing Office 
Washington 25, D.O. - Price $2.00 



EEVIEWED AND APPEOVED August 3, 1961 



(Date) 



Assistant Chief for Education and Training 



FOREWORD 

This Blue Book recognizes the desirability of changing the format 
of the current and succeeding volumes to include a greater number 
of problem situations, both hypothetical and actual, which would 
focus attention upon various phases of international law of vital 
concern to Naval officers. Under present circumstances it was de- 
termined that the compilation of treaties and other documents, im- 
portant though they are to international lawyers, libraries, and the 
Navy Department, should be kept to a minimum in order to permit 
greater time and space for the problem situations. 

Actually, the idea of incorporating more problem situations in the 
Blue Book is not new. The early editions were devoted almost en- 
tirely to problem situations. Moreover, Professor MacChesney, occu- 
pant of the Chair of International Law at the War College in 1955-56, 
wrote in the forward to his excellent volume entitled International 
Law Situation and Documents (1956) as follows: 

"An International Law Situation, drawn from a problem 
used in the curriculum of the Naval War College was included 
in this volume in the hope that it would serve to encourage 
later writers in this Blue Book Series to revive the custom 
that was inaugurated so many years ago by the late Professor 
George Grafton Wilson." 
The problem situations in the present volume have been formulated 
with particular reference to the 1958 United Nations Conference on 
the Law of the Sea held in Geneva, Switzerland, and the four Con- 
ventions which were formulated at that Conference. 

Normally the occupant of the Chair of International Law at the 
Naval War College has a full year in residence, plus additional time 
subsequent to his residency, to prepare the Blue Book. In my case, 
because of personal circumstances, that has not been possible. After 
receiving the appointment to the Naval War College for the year 
1959-60, it became necessary, because of a new assignment at the 
University of Southern California, for the writer to arrange with the 
President of the Naval War College to shorten the tour of duty to 
approximately six months. 

Perhaps the greatest debt of the writer is to. Vice Admiral Stuart 
H. Ingersoll, who as President of the Naval War College not only 

iii 



IV 

graciously consented to a shortened tour of duty, but kept the con- 
sulting and lecturing duties of the Chair to a minimum in order that 
the writer might have as much time as possible for the preparation 
of the Blue Book. 

The writer is indebted to Professors McDougal (Yale), Baxter 
(Harvard), Lissitzyn (Columbia) and Oliver (Pennsylvania) for 
their helpful comments and suggestions. But, of course, these dis- 
tinguished gentlemen are in no way responsible for the final con- 
clusions herein. 

In addition, the writer is deeply indebted to the Head and Officers 
of the Extension Education Department, and especially to CDR 
Charles E. Davis, International Affairs Division of the Naval War 
College for his helpful suggestions both as an international lawyer 
and as a Naval officer. 

The writer is also grateful to a number of persons at the Naval War 
College including members of the Library staff and of the secretarial 
staff of the Extension Education Department. 

The writer is also grateful to several institutions and people for 
their help : Yale Law School Library, Harvard Law School Library, 
Brown University Library, Peace Palace Library (The Hague), and 
the Los Angeles County Law Library. Mr. William B. Stern of the 
last named library has been especially helpful in the preparation of a 
preliminary bibliography and in making available the material in 
Appendix M. Oscar Schachter, Deputy Legal Advisor of the United 
Nations Secretariat, was most generous in making materials available. 

Finally, the writer wishes to acknowledge a sincere debt to his wife, 
an ex-librarian and former Naval officer (WAVE), who gave in- 
valuable assistance in proofreading the manuscript, preparing the 
bibliography, and submitted to the rather lonesome life of a "book 
widow." 

Carl M. Franklin 
University of Southern California 
Vice President, Financial Affairs and Professor of Law 

Los Angeles, California 



PREFACE 

The publication of this series was inaugurated by the Naval War 
College in 1894. This is the fifty-second volume in the series, as 
numbered for index purposes. The titles vary from year to year. 
The preceding volume is entitled International Law Situations and 
Documents 1956, /Situation, Documents and Commentary on Recent 
Developments in the International Law of the Sea, by Professor 
Brunson MacChesney. 

During the past decade the world has witnessed an increasing in- 
terest in the Law of the Sea, an area of International Law which 
always has been of vital concern to Naval officers. Many international 
organizations, especially the International Law Commission of the 
United Nations, have devoted considerable time and thought to various 
aspects of the subject. The efforts of the International Law Com- 
mission resulted in the preparation in 1956 of 73 draft articles on the 
regime of the seas with elaborate commentaries. During the spring 
of 1958 the United Nations held a world-wide Conference on the Law 
of the Sea at Geneva, Switzerland, culminating in the preparation of 
four major conventions, a protocol and nine resolutions. 

The present volume by Professor Carl M. Franklin of the Univer- 
sity of Southern California, occupant of the Naval War College Chair 
of International Law during part of the year 1959-60, contains a 
discussion of some of the more important recent developments of the 
law of the sea, with particular reference to the 1958 United Nations 
Conference, together with an analysis of several problem situations. 

The opinions expressed in this volume are not necessarily those of 
the United States Navy or of the Naval War College. 

B. L. Austin 

Vice Admiral, U.S. Navy 

President, Naval War College 



TABLE OF CONTENTS 

Page 

FOREWORD. vii 

PREFACE . ix 

INTRODUCTION i 

Chapter 

I. THE 1958 GENEVA CONVENTION ON THE CONTINENTAL 

SHELF 8 

A. Introduction 8 

B. Historical Development of the Continental Shelf Concept 12 

1. Scientific Definition of the Continental Shelf 12 

2. The Problem of Irregularities in the Shelf 17 

3. Legal Definitions of the Continental Shelf 19 

C. Claims to the Continental Shelf Resources 30 

1. Early Claims to Sea Bed and Subsoil Resources 30 

2. Early 20th Century Claims to Continental Shelf Resources 35 

3. Mid-Twentieth Century Claims to Continental Shelf Resources. . . 37 

a. U.K.-Venezuela Treaty of 1942 37 

b. The Truman Proclamation of 1945. 38 

(1) Assertions 42 

(2) Jurisdiction and Control versus Sovereignty 44 

c. Claims of States Subsequent to the Truman Proclamation 49 

(1) Claims to Continental Shelf with a precise depth limit of 

superjacent waters 49 

(2) Claims with a precise width limit of superjacent waters 51 

a. Summary and Conclusions in regard to Chilean claims. ... 57 

(3) Claims affecting an indeterminate extension of sovereignty 

over adjacent submarine area and high seas . 58 

4. Conclusion 62 

II. THE GENEVA CONVENTION ON THE CONTINENTAL 

SHELF: SOME PROBLEM SITUATIONS 64 

A. Problem 1. Use of the Continental Shelf for Purposes Other than 

Exploitation of Natural Resources 65 

B. Problem 2. Use of Neutral State's Continental Shelf Safety Zone 

Area as a Base of Naval Operations by an Overseas State 67 

III. THE 1958 GENEVA CONVENTION ON THE TERRITORIAL 

SEA AND THE CONTIGUOUS ZONE 84 

A. Introduction 84 

B. Coastal Fisheries and the Territorial Sea 91 

C. The United States Compromise Proposal 95 

D. Separation of Delimitation of Territorial Sea from Coastal Fisheries 

Problem 107 

E. Suggested Principles for High Seas and Coastal Fisheries 109 

1. Principle I: Basic Right to Fish on the High Seas 109 

2. Principle II: Preferential Fishing Rights for Coastal States in 

Limited Areas 110 

vi 



Vll 

TABLE OF CONTENTS— Continued 

Chapter Page 

3. Principle III: In Exceptional Cases, Exclusive Fishing Rights 

for Coastal States 113 

F. The Need for a Narrow Territorial Sea: The United States and Free 

World Perspective 115 

1. Principal Reasons Why Many States Favor An Extension of 

the Territorial Sea 116 

2. Military Reasons for a Narrow Territorial Sea 120 

3. Economic Reasons for a Narrow Territorial Sea 124 

IV. PROBLEM SITUATIONS INVOLVING THE QUESTION OF IN- 

NOCENT PASSAGE THROUGH THE TERRITORIAL SEA. . . 127 

A. Event I. (Submarine Surfacing Within the Territorial Sea, Anchor- 

ing, and Failing to Fly Flag) 131 

B. Event II. (Passage of State B's Warship Without 24-hour Notifica- 

tion) 133 

(Without giving prior notification) 133 

(Without securing radar equipment) 138 

(Carrying nuclear weapons) 139 

(Conducting gunnery exercise) 144 

C. Event III. (Merchant Ship Carrying Military Cargo Through Ex- 

tended Territorial Sea which Extension the Flag State Has Not 
Recognized 147 

D. Event IV. (Coastal State's Jurisdiction in Territorial Sea Over 

Foreign Fishing Vessel) 149 

(Over a foreign fishing vessel) . 149 

(Over a criminal, citizen of coastal state, aboard foreign vessel) . . 153 

E. General Conclusion With Respect to the Right of Innocent Passage 

Through the Territorial Sea 154 

V. HIGH SEAS PROBLEM SITUATIONS 157 

A. Problem 1: Right to Board and Inspect a Foreign Vessel on the High 

Seas Thought to be Guilty of Damaging Transatlantic Cables. . . 157 

B. Problem 2: Exclusion of a Foreign Ship from Nuclear Testing Area. 178 

Appendices 
Appendix 

A. Convention on the Territorial Sea and the Contiguous Zone 

(Adopted April 27, 1958. U.N. doc. A/CONF. 13/L. 52) 194 

B. Convention on the High Seas (Adopted April 27, 1958. U.N. doc. 

A/CONF. 13/L. 53 and corr. 1) 203 

C. Convention on Fishing and Conservation of the Living Resources 

of the High Seas. (Adopted April 26, 1958. U.N. doc. A/ 
CONF. 13/L. 54 and Add. 1) 213 

D. Convention on the Continental Shelf. (Adopted April 26, 1958. 

U.N. doc. A/CONF. 13/L. 55) 221 

E. Optional Protocol of Signature Concerning the Compulsory 

Settlement of Disputes. (Adopted April 26, 1958. U.N. 

doc. A/CONF. 13/L. 57) 226 



Vlll 

TABLE OF CONTENTS— Continued 

Appendix P age 

F. Resolutions Adopted by the Conference (U.N. doc. A/CONF. 13/ 

L. 56) 228 

(1) Nuclear Tests on the High Seas 228 

(2) Pollution of the High Seas by Radioactive Materials .... 228 

(3) International Fishery Conservation Conventions 229 

(4) Co-operation in Conservation Measures 229 

(5) Humane Killing of Marine Life 230 

(6) Special Situations Relating to Coastal Fisheries 230 

(7) Regime of Historic Waters 231 

(8) Convening of a Second United Nations Conference on the 

Law of the Sea 231 

(9) Tribute to the International Law Commission 232 

G. Text of the Articles Concerning the Law of the Sea Adopted by the 

International Law Commission at Its Eighth Session 233 

H. Resolution 1105 (XI) adopted by the General Assembly on Febru- 
ary 21, 1957, convoking the Geneva Conference of 1958. Gen- 
eral Assembly, 11th Sess., Official Records, Supp. No. 17, (A/ 
3572). Text also in U.N. doc. A/CONF. 13/20, Annex, p. 1.. . . 255 
I. List of Preparatory Documents, Reports and Memoranda for the 

Geneva Conference on the Law of the Sea, 1958 258 

J. Signatures to Instruments Adopted at the United Nations Confer- 
ence on Law of the Sea held at Geneva from 24 February to 27 
April 1958 264 

K. Synoptical Table of Unilateral Claims by States to Territorial Sea, 
Continental Shelf and Contiguous Zones for Special Purposes. 
(Prepared by United Nations Secretariat.) 273 

L. Twelve-State Treaty Guaranteeing Nonmilitarization of Antarc- 
tica and Freedom of Scientific Investigation (U.S. Dept. of State 
Bulletin, Vol. XLI, No. 1069, Dec. 21, 1959) 288 

M. Independent or Semi-Independent States Established since World 

War II 300 

N. How Wide the Territorial Sea? (By Captain Robert D. Powers, 

Jr., U.S. Navy, and Captain Leonard R. Hardy, U.S. Navy.) . 304 



INTRODUCTION 

The United Nations Conference on the Law of the Sea held in 
Geneva from February 24 to April 28, 1958, 1 is unquestionably the 
most important international conference ever held on this subject 2 and 
one of the most significant attempts ever made by governments of 
the world to codify international law. 3 

The Conference derives its importance from several facts. First, 
it was attended by all of the major maritime states of the world, in- 
cluding most, but not all, of the members of the United Nations plus 
some important non-member states such as the Federal Eepublic of 
Germany and Switzerland. 4 Moreover, the list of participants in- 
cluded several land-locked states, emphasizing not only their interest 
in the utilization of the ocean resources of the world, but a demand that 

1 This conference will be referred to hereafter as the Geneva Conference, 1958. 
A second conference, which will be referred to as Geneva Conference, 1960, 
has been convened by the United Nations starting in March 1960, pursuant to a 
resolution adopted by the Geneva Conference, 1958. For the full text, see 
Appendix F (8) , p. 231. 

2 The Hague Codification Conference of 1930, attended by 47 states and the 
Free City of Danzig, as compared with the 86 states at the Geneva Conference, 
1958, was concerned with only one aspect of the total regime of the seas, namely, 
territorial waters. When the 1930 conference failed to reach agreement on the 
breadth of territorial waters, nothing was produced by way of a convention on 
the subject. As will be seen from the subsequent discussion here, the Geneva 
Conference, 1958, did produce a convention on the territorial sea, as well as three 
other conventions, despite the fact that the states, as in 1930, could not agree 
on a precise width of the territorial sea. 

3 Other important codification conferences have been held during the past sixty 
years, such as the Hague Conferences of 1899 and 1907, concerned chiefly with 
the peaceful settlement of disputes and the laws of war, and, more recently, the 
Geneva Conference of 1949 which concerned itself with the protection of the 
wounded and sick, prisoners of war, and civilian persons. In general, the main 
purpose of previous codification conferences has been to facilitate the noncoercive 
means of settling disputes and to humanize the coercive means. While no one 
would detract from these worthwhile objectives, the broad purpose of the 
Geneva Conference of 1958 on the Law of the Sea to reach agreement on maxi- 
mum utilization of two-thirds of the earth's surface and the resources thereof 
relegates previous codification conferences to positions of relatively minor 
importance. 

4 The participants in the Conference were: Afghanistan, Albania, Argentina, 
Australia, Austria, Belgium, Bolivia, Brazil, Bulgaria, Burma, Byelorussian, 



2 

the Conference "study the question of free access to the sea of land- 
locked countries." 5 

Second, the Conference was the most important ever held on the 
law of the sea because of its broad scope and accomplishments. 
Called by the Secretary General of the United Nations, pursuant to 
a resolution adopted by the General Assembly on February 21, 1957, 6 
upon the recommendation of the International Law Commission, 7 the 
Conference after nine weeks of arduous work adopted four conven- 
tions: (1) the territorial sea and the contiguous zone; (2) the high 
seas; (3) fishing and conservation of the living resources of the high 



Soviet Socialist Republic, Cambodia, Canada, Ceylon, Chile, China (Republic of 
China referred to in text and footnotes as China), Colombia, Costa Rica, Cuba, 
Czechoslovakia, Denmark, Dominican Republic, Ecuador, El Salvador, Finland, 
France, Germany (Federal Republic of), Ghana, Greece, Guatemala, Haiti, 
Holy See, Honduras, Hungary, Iceland, India, Indonesia, Iran, Iraq, 
Ireland, Israel, Italy, Japan, Jordan, Korea (Republic of), Laos, Lebanon, 
Liberia, Libya, Luxembourg, Malaya (Federation of), Mexico, Monaco, Morocco, 
Nepal, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, 
Paraguay, Peru, Philippines, Poland, Portugal, Romania, San Marino (Republic 
of), Saudi Arabia, Spain, Sweden, Switzerland, Thailand, Tunisia, Turkey, 
Ukrainian Soviet Socialist Republic, Union of South Africa, Union of Soviet 
Socialist Republics, United Arab Republic, United Kingdom of Great Britain and 
Northern Ireland, United States of America, Uruguay, Venezuela, Viet-Nam 
(Republic of), Yemen, Yugoslavia. Specialized agencies: International Labour 
Organisation, United Nations Food and Agriculture Organization, United 
Nations Education, Scientific and Cultural Organization, International Civil 
Aviation Organization, World Health Organization, International Telecom- 
munication Union, World Meteorological Organization. 

5 U.N. General Assembly, Official Records, 11th Sess. Supp. 11 (Doc. A/3572, 
para. 3). This demand by several land-locked countries resulted in the inclusion 
in the Convention on the High Seas of an article (Art. 3(1)) making special 
provisions for such states to acquire by agreement with coastal states free transit 
through the territory of coastal states and equal treatment in ports. Cf. Prepara- 
tory Document No. 23 of the United Nations Conference on the Law of the Sea, 
A/CONF. 13/29, 14 January 1958 (hereinafter referred to as: Prep. Doc. 23). 

6 U.N. General Assembly, Official Records, 11th Sess. Supp. 17 (Doc. A/3572, 
Resolution 1105 (XI)). 

7 The International Law Commission recommended in its report covering the 
work of its eighth session that the General Assembly "summon an international 
conference of plenipotentiaries to examine the law of the sea, taking account not 
only of the legal but also of the technical, biological, economic and political 
aspects of the problem." Cf. International Law Commission Report, U.N. Gen- 
eral Assembly, Official Records, 11th Sess. Supp. 9 (Doc. A/3159 art. 67 (1956) ) 
(hereinafter cited as: I.L.C. Report). For a criticism of the Commission's as- 
sumption of restricted competence and the confusion which results from an 
overemphasis upon presumed distinctions between "legal aspects" and "tech- 
nical, biological, economic and political aspects" of the law of the sea, Cf. 
McDougal & Burke, "Crisis in the Law of the Sea : Community Perspectives 
Versus National Egoism," 67 Yale Law Journal 539, 543 (1958). 



seas; and (4) the continental shelf. 8 In addition, the Conference 
adopted one optional protocol of signature concerning the compulsory 
settlement of disputes, 9 and nine resolutions. 10 

It will be recalled that the Hague Codification Conference of 1930 
was concerned essentially with only one phase of the law of the sea, 
namely, territorial waters. By contrast, the Geneva Conference of 
1958 covered nearly all aspects of the seas and their resources: terri- 
torial sea, contiguous zone, high seas, bays, fisheries and conservation, 
continental shelf, piracy, nationality of ships, and other matters. The 
extensive coverage of the Conference is indicated by the resolution of 
the General Assembly which convoked the Conference, 11 by the scope 
of preparatory documents and memoranda submitted to the partici- 
pants by the United Nations Secretariat, 12 and by the inclusiveness 
of the 73 draft articles of the International Law Commission, which 
with some important modifications were incorporated in the four con- 
ventions and the protocol. 

While it is true that the Conference did not reach agreement on 
a number of important matters, notably the breadth of the territorial 

8 For the complete texts of each of the four conventions', see the following : 

Appendix A. Convention on the Territorial Sea and Contiguous Zone 

Appendix B. Convention on the High Seas 

Appendix C. Convention on Fishing and Conservation of the Living Resources 
of the High Seas 

Appendix D. Convention on the Continental Shelf. 

8 United Nations Conference on the Law of the Sea, Official Records, 1958 
(hereinafter cited as U.N. Doc. A/CONF. 13/ . . .) V. II Plenary Meetings, (U.N. 
Doc. A/CONF. 13/L. 57, 145-146). For a complete statement of the texts of 
this Protocol, see Appendix E, p. 226. 

10 U.N. Doc. A/CONF. 13/L. 56. For a complete statement of the text of these 
Resolutions, see Appendix F, p. 228. 

The work of the Conference was divided among five main committees, as 
follows, for which summary records of meetings and annexes have been prepared 
by the United Nations Secretariat : 

First Committee: Territorial Sea and Contiguous Zone, (U.N. Doc. A/CONF. 
13/39, V. Ill) ; 

Second Committee: General Regime of the High Seas (U.N. Doc. A/CONF. 
13/40, V. IV) ; 

Third Committee : High Seas : Fishing, Conservation of Living Resources, 
(U.N. Doc. A/CONF. 13/41, V. V) ; 

Fourth Committee: Continental Shelf, (U.N. Doc. A/CONF. 13/42, V. VI); 

Fifth Committee: Question of Free Access to the Sea of Land-locked Coun- 
tries, (U.N. Doc. A/CONF. 13/43, V. VII) . 

"For a complete statement of the General Assembly resolution 1105 (XI) of 
21 February 1957, see Appendix H, p. 255. 

12 For a list of the titles of these preparatory documents see Appendix I, pp. 
258. 



sea, coastal fisheries, nuclear tests on the high seas, and the regime 
of historic waters, including historic bays, the four conventions 
which did emerge represent a surprising and gratifying amount of 
agreement among the participating states. For example, the relatively 
new concept of the continental shelf, little more than a decade old, 
was formulated in seven substantive draft articles and approved by 
a resounding 57 votes in favor, only three against, with eight 
abstentions. 13 

The most controversial of the four conventions, the one on fishing 
and conservation of the living resources of the high seas, was adopted 
by the Conference as a whole by 45 votes in favor, only one against, 
and 18 abstentions. 14 The final votes of the other two conventions 
also underscore the substantial amount of agreement reached during 
the nine weeks' Conference by the eighty-six participating states. The 
Convention on the High Seas was adopted by 65 in favor, opposed, 
and 1 abstention. 15 The vote of the Conference on the Convention on 
the Territorial Sea and Contiguous Zone was 61 in favor, opposed, 
and 2 abstentions. 16 

Even if all of the conventions are not eventually ratified by a sub- 
stantial majority of the states attending the Conference, or even by 
twenty-two states whose signatures are necessary m each case to make 
the convention become effective, still the adoption at the Conference 
of the four conventions by such substantial majorities indicates the 
most recent restatement of the law on the various subjects covered. 
This being the case, the Geneva Conference of 1958 may be considered 
a mammoth stride in the direction of the ultimate codification of the 
law of the sea. 

Thirdly, the 1958 Geneva Conference can be considered of major 
importance in that it constituted the first world-wide meeting to dis- 
cuss draft articles prepared by the International Law Commission of 
the United Nations. Therefore, it represents the first United Nations 
codification conference and may well set the pattern for similar future 
conclaves under the aegis of the United Nations. This fact not only 
enhances the prestige of the United Nations in the eyes of the world 
community, but, what is equally important, underscores the signifi- 
cance of the work of the International Law Commission. The world 
owes a debt of gratitude to the members of this Commission, whose 



13 U.N. Doc. A/CONF. 13/SR. 18, 6. 

14 U.N. Doc. A/GONF. 13/54/SR. 18, 11. 

15 U.N. Doc. A/CONF. 13/38, 61 (1958). 
l6 IMd., at p. 73. 



devoted and unstinting efforts over a number of years to develop 
and codify international law are at last beginning to bear fruit. 

Finally, the Geneva Conference of 1958 is of particular significance 
in that the participating delegates viewed with optimism, determina- 
tion and dedication their continuing duty to find an ultimate solu- 
tion to those problems on which agreement could not be reached in 
1958. After adopting the four conventions and the optional protocol, 
the Conference approved the resolution previously referred to which 
requested the General Assembly of the United Nations to consider 
convening a second international conference of plenipotentiaries for 
further study of the questions left unsettled by the 1958 Conference. 
In so acting the delegates recognized the desirability of making fur- 
ther efforts, at an early and appropriate time, to reach agreement on 
several unresolved questions regarding the law of the sea. 

The manifestation of optimism and determination to continue dis- 
cussions for the purpose of attempting to reach agreement at some 
future time on several knotty problems, on which agreement in 1958 
was not possible, augurs well for the future. Problems are seldom 
solved by disregarding them in the vain hope that they will vanish. 
While the 1960 Conference may not result in agreement on either the 
delimitation of the territorial sea or the coastal fisheries problem, the 
only way to achieve the ultimate solution to these and other unresolved 
questions is to continue studying them. Although an international 
conference may not reach an agreement, it may, and often does, facili- 
tate the delineation of the areas of disagreement. Moreover, with 
the spotlight of world public opinion focused upon an international 
conference there is always the hope that opposing sides will concede 
enough to produce a compromise convention which can inch forward 
the development of international law. Since the world is already too 
small for violence — and shrinking — the conference method of resolv- 
ing international problems such as those relating to the law of the 
sea must be used increasingly. 

The four conventions remained open for signature until 31 Oc- 
tober 1958. As of that date fifty-two states had signed one or more 
of the conventions. The United States and the United Kingdom had 
signed all four; the U.S.S.R. had signed three of the four, but not the 
Convention on Fishing and Conservation of the Living Resources of 
the High Seas. 

A summary of the totals of signatures to the five instruments (i.e., 
the four conventions and the optional protocol) reveals that there was 
greater support for the conventions on the high seas and the conti- 
nental shelf than for the other two : 



6 

Total Signature on Five Instruments 17 as of Sl October 1958 

INSTRUMENT NO. OF STATES SIGNING 

Convention on High Seas . . 47 

Convention on Continental Shelf . 46 

Convention on Territorial Sea and Contiguous Zone 44 

Convention on Fishing and Conservation . 37 

Optional Protocol of Signature Concerning Compulsory Settlement 

of Disputes 30 

The Optional Protocol of Signature Concerning Compulsory 
Settlement of Disputes received far less support than any of the four 
conventions. As indicated above, only 30 of the 52 states which had 
signed one or more of the conventions by the closing date had signed 
the Protocol. However, since the Protocol did not provide the closing 
date of 31 October 1958 for signatures, 18 as was the case for the four 
conventions, it is possible that some states may still sign, although it 
is unlikely that many more will do so in view of the antagonism of a 
number of the delegations toward granting to the International Court 
of Justice compulsory jurisdiction over disputes arising out of the 
interpretation or application of the conventions. 19 

As of 31 October 1958 only 25 states 20 had signed all five of the 



17 For a complete summary of the signatures to all four Conventions and the 
Optional Protocol, together with a statement of the reservations and/or declara- 
tions by the signatory states, see Appendix J, p. 264. Prepared by the author 
from information supplied by the United Nations. 

18 The exact language of the Optional Protocol with respect to signatures 
thereto is : "Art. V : This Protocol shall remain open for signature by all States 
who become Parties to any Convention on the Law of the Sea adopted by the 
United Nations Conference on the Law of the Sea and is subject to ratification, 
where necessary, according to the constitutional requirements of the signatory 
States." (Appendix E, p. 226.) If the intention was that any State signing 
any Convention became sl party thereto, then the twenty-two states which have 
signed one or more of the Conventions but have not signed the Optional Proto- 
col, may still do so. On the other hand, if the intention of this article is that 
a state becomes sl party to a Convention by ratification or accession, then pre- 
sumably additional states, that is the thirty-four which have not signed even 
one of the Conventions, could sign the Optional Protocol whenever they ratify 
or accede to one or more of the four Conventions. 

19 The Optional Protocol makes an exception with respect to certain provisions 
in the Convention on Fishing and Conservation of Living Resources of the High 
Seas. See Article II of the Optional Protocol, Appendix E, p. 226 and also 
Articles 9, 10, 11 and 12 of the Convention on Fishing and Conservation, Ap- 
pendix C, pp. 216-218. 

20 The twenty-five states signing all four Conventions plus the Optional Protocol 
includes several of the major maritime states of the world : Bolivia, Canada, 
Ceylon, China, Colombia, Costa Rica, Cuba, Denmark, Dominican Republic, 
Finland, Ghana, Haiti, Israel, Liberia, Nepal, Netherlands, New Zealand, Paki- 
stan, Panama, Portugal, Switzerland, United Kingdom, United States, Uruguay, 
and Yugoslavia. See Appendix J. 



instruments adopted at the Conference by the 86 participating states. 
Ten states had signed four of the five instruments; ten had signed 
three; four had signed two, and three had signed but one. Chile, 
Ecuador and Peru, leaders among the states of South America claim- 
ing sovereignty over a 200-mile breadth of high seas adjacent to their 
coasts, 21 are the three states which signed only the Convention on the 
Continental Shelf. 

The latest report from the United Nations Secretariat (as of 12 
May 1961) indicates that 10 states have ratified the Convention on the 
High Seas (Afghanistan, Haiti, Ukrainian Soviet Socialist Kepublic, 
Union of Soviet Socialist Republics, United Kingdom of Great 
Britain and Northern Ireland, Cambodia, Federation of Malaya, 
Byelorussian Soviet Socialist Republic, United States of America, 
Senegal), 9 states have ratified the Convention on the Territorial Sea 
and the Contiguous Zone (Haiti, Ukranian Soviet Socialist Republic, 
Union of Soviet Socialist Republics, United Kingdom of Great 
Britain and Northern Ireland, Cambodia, Federation of Malaya, 
Byelorussian Soviet Socialist Republic, United States of America, 
Senegal). 6 states have ratified the Convention on Fishing and 
Conservation of the Living Resources of the High Seas (Haiti, 
United Kingdom of Great Britain and Northern Ireland, Cambodia, 
Federation of Malaya, United States of America, Senegal). 8 states 
have ratified the Convention on the Continental Shelf (Haiti, 
Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Re- 
publics, Cambodia, Federation of Malaya, Byelorussian Soviet Social- 
ist Republic, United States of America, Senegal) . 



21 For a discussion of these claims, see Ch. 1, pp. 15-58. 



CHAPTER I 

THE 1958 GENEVA CONVENTION ON THE 
CONTINENTAL SHELF 

A. INTRODUCTION 

The Convention on the Continental Shelf, 1 signed by a majority of 
the 86 states attending the United Nations Conference on the Law of 
the Sea at Geneva, Switzerland, from February 24 to April 28, 1958, 2 
represents the most rapid and successful development of an important 
aspect of the law of the sea ever achieved. 

Born as a legal concept in the 1945 Truman Proclamation, 3 the 
continental shelf doctrine has grown to full stature in a scant fifteen 
years. As a new concept in international law it has met with wide- 
spread support in the world community of states, and has taken its 
place alongside the older and more venerated concepts of "freedom 
of the high seas," "territorial sea," and "contiguous zones" as an 
established part of the contemporary international law. 

By 31 October 1958, the terminal date for signatures to the Conven- 
tion on the Continental Shelf, as well as for the three other Conven- 
tions adopted in Geneva at the same time, 4 46 states had signed, 
including the United States, Canada, and all of the other large mari- 
time states in the Western Hemisphere except Brazil and Mexico. 5 
Especially encouraging is the fact that the U.S.S.K. has also signed 

1 Adopted 26 April 1958, U.N. Doc. A/CONF. 13/L. 55. 

3 Following is a complete list of the 46 states signing : Afghanistan, Argentina, 
Australia, Bulgaria, Byelorussian S.S.R., Canada, Ceylon, Chile, China, 
Colombia, Costa Rica, Cuba, Czechoslovakia, Denmark, Dominican Republic, 
Ecuador, Finland, Germany (Federal Republic), Ghana, Guatemala, Haiti, 
Iceland, Indonesia, Iran, Ireland, Israel, Lebanon, Liberia, Nepal, Netherlands, 
New Zealand, Pakistan, Panama, Peru, Poland, Portugal, Switzerland, Thai- 
land, Tunisia, Ukrainian S.S.R., U.S.S.R., United Kingdom, United States of 
America, Uruguay, Venezuela, and Yugoslavia. For comparative lists of the 
52 states which have signed one or more of the four conventions, see Appendix J. 

8 Presidential Proclamation No. 2667, 28 September 1945, 59 Stat. 884. 

4 Convention on the Territorial Sea and the Contiguous Zone (U.N. Doc. 
A/CONF. 13/L. 52) ; Convention on the High Seas (U.N. Doc. A/CONF. 13/L. 
53/Corr. 1) ; Convention on Fishing and Conservation of the Living Resources 
of the High Seas (U.N. Doc. A/CONF. 13/L. 54/Add. 1). 

5 Since both Mexico (1945) and Brazil (1950) have asserted claims to their 
respective continental shelves, it seems reasonable to assume that they support 
the continental shelf concept, even though their disagreement with the exact 
language of the Convention has caused them to refrain from signing. 

8 



9 

the Convention without reservations, even though she has never issued 
a proclamation or decree laying claim to the vast continental shelves 
off her coasts. 6 Similarly, although not surprisingly, Soviet bloc 
countries have also signed the Convention without reservation. 

But the successful development of this newest aspect of the law of 
the sea is not to be measured alone in terms of the extent to which the 
leading bipolar powers of the world have agreed to the articles of the 
Geneva Convention. The really significant fact is that when science 
and technology had developed sufficiently to permit the exploitation 
of the much-needed resources of the continental shelf, 7 and various 
coastal states had begun to assert claims to these resources, 8 the Inter- 
national Law Commission, charged by the General Assembly with 
codifying and developing international law, 9 vigorously undertook a 
systematic study of this new potential use of the high seas, 10 concur- 
rently with similar studies by several international associations. 



11 



6 According to recent tabulations by the United Nations Secretariat, 35 states 
have formally claimed their continental shelves (U.N. Doc. A/CONF. 19/4 
8 Feb. 1960). That the number of claims is not larger is due chiefly to the fact 
that many states believe that since the continental shelf belongs to the coastal 
state ipso jure, sl proclamation or decree is unnecessary. The Convention so 
provides in Art. 2(3). 

7 For a summary of recent developments in the technology of exploiting the 
mineral resources of the continental shelf see Preparatory Document No. 20 
of the United Nations Conference on the Law of the Sea, prepared by the able 
Netherlands lawyer, M. W. Mouton, Rear Admiral, Royal Netherlands Navy, 
U.N. Doc. A/CONF. 13/25 (1958). 

8 The States which asserted claims shortly after the United States Procla- 
mation in 1945 were: Mexico (1945), Argentina (1946), Chile (1947), Peru 
(1947) , Costa Rica (1948) , Honduras (1948) , Iceland (1948) . See the Synoptical 
Table (Appendix K). 

9 General Assembly Resolution 174 ( II ) , 21 November 1947. Article 15 of the 
Statute of the International Law Commission defines the progressive develop- 
ment of international law as "the preparation of draft conventions on subjects 
which have not yet been regulated by international law or in regard to which 
the law has not yet been sufficiently developed in the practice of States." 
Codification of international law is defined as "the more precise formulation and 
systematisation of rules of international law in fields where there already has 
been extensive State practice, precedent and doctrine." For discussions of the 
soundness of these distinctions see Jennings, "The Progressive Development of 
International Law and Its Codification," 24 B.Y.I.L. 301 (1947). For the history 
of the provision in the Statute of the International Law Commission see Yuen-li 
Liang, 42 A.J.I.L. 66 (1948). For an excellent historical survey of the develop- 
ment of international law and its codification by international conferences, see 
41 A.J.I.L. Supp. 29 (1947) . 

10 At its first session in 1949 the International Law Commission placed the 
"regime of the high seas" on its provisional list of topics selected for codification. 
Report of First Sess. U.N. General Assembly, Official Records, 4th Bess. Supp. 10, 
Doc. A/1925, par. 16, item 5 (194*9) . 

11 For example, see the several reports on "Rights to the Sea Bed and Its 
Subsoil," International Law Association Biennial Report, as follows: 43d Conf., 
607631—61 2 



10 

An effort was made to formulate a workable set of principles and rules 
which would reconcile the claims of the coastal states to the exclusive 
rights over the continental shelf resources with the competing claims 
of all maritime states to the free use of the high seas for navigation, 
fishing, cable and pipeline laying, scientific investigation, and other 
uses. 

The Convention on the Continental Shelf, whatever its deficiencies, 12 
represents the culmination of a concerted effort to compromise rather 
diverse demands of states, each with different geographical features, 



Brussels (1948), pp. 168-206; 44th Conf., Copenhagen (1950), pp. 87-138; 45th 
Conf., Lucern (1952), pp. 143-179; 46th Conf., Edinburgh (1954). Also see 
International Bar Association Report, London (1950), pp. 183-197; Madrid 
(1952), pp. 278-285. 

"Opinions of writers vary as to whether the convention has serious defi- 
ciencies. Richard Young says, "Nevertheless, despite these substantial merits, 
the Convention cannot be regarded as a wholly satisfactory instrument. It is 
quite good, but not quite good enough." Young, "The Geneva Conveistion on the 
Continental Shelf: A First Impression," 52 A.J.I.L. 733 (1958). 

Arthur Dean, Chairman of the U.S. Delegation to the Conference, appears 
enthusiastic in saying ". . . [T]he Convention on the Continental Shelf adopted at 
the Geneva Conference represents the first worldwide accord on the subject and is 
highly satisfactory to the United States." 52 A.J.I.L. 607, 619 (1958). Miss 
Marjorie M. Whiteman, a member of the U.S. Delegation and also of Committee 
IV which formulated the Convention on the Continental Shelf, seems to feel that 
the convention is open to criticism but that it represents a workable document 
which will influence "the content and direction of the developing international 
law" on this subject. She concludes : "Some may think that the Convention goes 
too far ; others, perhaps a larger number, may think that it does not go far 
enough in certain of its aspects. Of course, whether it does or not is a matter 
of opinion ; both views may be warranted in some measure." Whiteman, "Con- 
ference on the Law of the Sea : Convention on the Continental Shelf," 52 A.J.I.L. 
629, 659 (1958). 

Professor Jessup is enthusiastic about the success of the entire conference, and 
particularly about the Convention on the Continental Shelf. He says: "At 
present it seems safe to say that it was a successful conference and that irrespec- 
tive of the fate of some of the conventions, the Conference achieved enough 
clarification and a wide enough measure of agreement to have justified the very 
considerable effort." Jessup, "The United Nations Conference on the Law of 
the Sea," 59 Columbia Law Review 234 (1959). Of the Convention on the 
Continental Shelf he adds : "There are expectations that the Convention on the 
Continental Shelf may prove to be the most tangible success of the Con- 
ference, . . ." Ibid., p. 251. Also see Jessup, "The Geneva Conference on 
the Law of the Sea; A Study in International Law-Making," 52 A.J.I.L. 730 
(1958). Professor D. H. N. Johnson, a member of the United Kingdom delega- 
tion to the Conference, while admitting the success of the Conference, is highly 
critical of many of the procedures followed and the preparations made. John- 
son, "The Preparation of the 1958 Geneva Conference on the Law of the Sea," 
8 International and Comparative Law Quarterly 122, 143 (1959). 



11 

economic conditions, political interests, technological abilities and 
legal perspectives. It is a mark of success that the convention was 
adopted at all ; a further mark of success that the final vote of the 
Conference was so overwhelmingly favorable : 57 states voted for the 
Convention and only three against, with eight abstentions. 13 

Finally, the Convention on the Continental Shelf, even more than 
the other three conventions, 14 may be considered a success in that the 
support for the first three of the seven substantive articles was so 
strong that the Conference excluded the possibility of any state mak- 
ing reservations to these articles at the time of signature, ratification 
or accession. 15 These three articles cover the definition of the con- 
tinental shelf, the description of the sovereign rights of the coastal 
state, and the explicit limitation of those rights in that they do not 
affect freedom of the superjacent waters and the airspace above those 
waters. 16 Only three of the 46 states signing the Convention filed 
declarations or reservations to any of the articles other than the first 
three, and these were of minor importance. 17 

Of course, whether the Convention on the Continental Shelf will 
eventually achieve widespread acceptance in the world community 
depends neither upon the number of states which voted for it at the 
Conference, nor upon the number signing the convention, but upon 



13 U.N. Doc. A/CONF.13/SR.18, 6 (1958). 

14 Ibid., note l-3a. 

15 U.N. Doc. A/CONF. 13/L.55, Art. 12 (1958) . 

16 Ibid., Art. 1-3. 



17 Germany (Federal Republic) filed a declaration with respect to Art. 5, 
par. 1 to the effect that in her opinion it "guarantees the exercise of fishing rights 
( Fischer ei) in the waters above the continental shelf in the manner hitherto 
generally in practice." (Mimeographed summary by United Nations Secre- 
tariat as to declarations and reservations made to all four conventions and the 
optional protocol at the time of signature.) Iran filed a reservation to Art. 4 
with respect to the phrase, "the Coastal State may not impede the laying or 
maintenance of submarine cables or pipe lines on the continental shelf," saying 
that the Iranian Government "reserves its right to allow or not to allow the 
laying or maintenance of submarine cables or pipe lines on its continental shelf." 
Iran also made a reservation to Art. 6 with respect to the phrase, "and unless 
another boundary line is justified by special circumstances," by saying that the 
Iranian Government "accepts this phrase on the understanding that one method 
of determining the boundary line in special circumstances would be that of 
measurement from the high water mark." (Ibid.) Venezuela also filed a 
reservation with reference to Art. 6, declaring "that there are special circum- 
stances to be taken into consideration in the following areas : the Gulf of Paria, 
in so far as the boundary is not determined by existing agreements, and in zones 
adjacent thereto ; the area between the coast of Venezuela and the island of 
Aruba ; and the Gulf of Venezuela." (Ibid.) 



12 

the number which finally ratify it. This fact will not be known for 
some time. As of 12 May 1961, eight states have ratified it. 

Moreover, the ultimate proof of the pudding is in the eating, not 
in the recipe. The final test of the success of the convention is 
whether it serves the purpose of achieving the maximum utilization 
of the continental shelf resources with the minimum of friction be- 
tween the states of the world, and with adequate provision for the 
maximum utilization of all other resources of the high seas, including : 
navigation, fishing, communication, transportation, scientific investi- 
gation, weapons testing, security, and a host of new emerging uses. 18 

B. HISTORICAL DEVELOPMENT OF THE CONTINENTAL 
SHELF CONCEPT 

1. Scientific Definition of the Continental Shelf 

In reviewing the literature in scientific publications regarding the 
continental shelf, 19 and in studying the discussions of the International 
Law Commission on the subject, 20 one is convinced that there are al- 
most as many definitions and classifications of the continental shelf 
as there are writers on the subject. Particularly, one notes the differ- 
ence between the geological-geographical definition of the continental 
shelf and the legal definition as finally formulated in the Geneva 
Convention of 1958. 

When geologists, geographers and other scientists use the term 
"continental shelf" in a broad sense they mean the submarine exten- 
sion of the "continent" outward into the sea; a kind of pedestal on 
which the continents seem to rest in the ocean, lying "between the 
shore and the first substantial fall-off, on the seaward side, whatever 
its depth." 21 This submarine plain, which fringes all of the con- 
tinents, but at varying widths from the shore, slopes gradually in 
most instances out to an edge at which the superjacent water is ap- 
proximately 200 meters or 100 fathoms in depth. When this edge is 

18 On the potential wealth of the seas see Carson, The Sea Around Us (1954) ; 
Smith and Ghapin, The Sun, The Sea and Tomorrow (1954). 

19 Bourcart, Oeographie du Fond Des Mers (1949) ; Guileher, Morphologie 
Littorale et Sous-marine (1954) ; Krummel, Handbuch der Ozeanographie 
(1907) ; Kuenen, Marine Geology (1950) ; Shephard, Submarine Geology (1948) ; 
Sverdrup, Johnson and Fleming, The Oceans (1942) ; Umbgrove, The Pulse of 
the Earth (1949). Also see United Nations Preparatory Document No. 2, Scien- 
tific Considerations Relating to the Continental Shelf, U.N. Doc. A/CONF. 
13/2 (1957), and the citations therein (hereinafter cited as Prep. Doc. 2). 

20 See particularly the three principal reports on this subject by the Inter- 
national Law Commission to the General Assembly. U.N. Doc. A/1858 (1951) ; 
A/2456 (1953) ; A/3159 (1956). 

21 Bourcart, op. cit., footnote 19 (note 5-1 at 127). 



13 

reached the slope becomes steeper and is referred to as the continental 
slope. 22 

However, the broad definition of the continental shelf has been 
refined in various ways by scientists, some of whom distinguish be- 
tween "inner" and "outer" shelves, 23 "continental" shelves and "in- 
sular" shelves, 24 and "real" shelves and "false" shelves. 25 

Perhaps we can best understand what the continental shelves are 
from a geological point of view if we visualize for a moment what 
the earth would look like if we removed all of the water (hydro- 
sphere) from its surface. We would then see that the earth's crust 
(lithosphere) has two predominant features: (1) the continents to- 
gether with their gradually sloping continental shelves, and (2) the 
deep ocean basins whose steep-sloping sides are referred to as con- 
tinental slopes. 26 There are six such continents: North America, 



22 Following are the definitions adopted by the International Committee on the 
Nomenclature of Ocean Bottom Features, published by Wiseman and Ovey, 
"Definitions of Features on the Deep-sea Floor," Deep-Sea Research, Vol. I, 
No. 1, pp. 11-16 (Oct. 195S) : 

"Continental Shelf, shelf edge and borderland. The zone around the con- 
tinent, extending from the low-water line to the depth at which there is a marked 
increase of slope to greater depth. Where this increase occurs, the term shelf 
edge is appropriate. Conventionally, its edge is taken at 100 fathoms, or 200 
metres, but instances are known where the increase of slope occurs at more 
than 200 or less than 65 fathoms. When the zone below the low-water line is 
highly irregular, and includes depths well in excess of those typical of conti- 
nental shelves, the term continental borderland is appropriate. 

"Continental slope. The declivity from the outer edge of the continental shelf 
or continental borderland into great depths. 

"Continental terrace. The zone around the continents, extending from the 
low-water line, to the base of the continental slope. . . ." Prep. Doc. 2, p. 4. 

23 Umbgrove, op. cit., footnote 19 (Note 5-1 at 98) . 

24 Prep Doc. 2, p. 4. Also see, Kuenen, op. cit., footnote 19 (note 5-1, at 104). 
23 Krummel, op. cit., footnote 19 (note 5-1 at 105) . 

26 The experts who prepared Prep. Doc. 2, concluded at p. 5 : "In spite of the 
difficulties of defining the borderline between the continental shelf and the 
continental slope ... it is incontestable that the concept of continental shelf 
corresponds to a real feature. As a general rule, there exists in fact a shal- 
lowly submerged zone along the edge of continents, of which the mean slope 
is markedly less steep than beyond, leading to the deep-sea floor. The reality 
of this feature can be demonstrated by the percentages of terrestrial surface 
occupied by three depth zones of the oceans . . . : 

From to 200 metres 7.6 per cent 

From 200 to 1000 metres 4.3 per cent 

From 1000 to 2000 metres 4.2 per cent 

"Since the area covered by bottoms lying between and 200 metres is only 
slightly less than that between 200 and 2000 metres, a range of depth that is 
nine times as great, it is evident that the average slope is much steeper beyond 
200 metres than nearer shore." 



14 

South America, Europe- Asia, Africa, Australia and Antarctica. 
The first five of these continents are surrounded by a more or less 
continuous continental shelf of varying widths. Indeed, if the con- 
tinent of Antarctica did not exist we might speak of the continental 
shelves of the earth in the singular because "all the other continents 
lie within the confines of a single encircling belt of shallow water 
which is essentially continuous — the continental shelf." 2r 

The configurations of the submarine areas of the three oceans 
(Pacific, Atlantic and Indian) vary greatly. 28 Longitudinal ridges 
divide the oceans into elongated troughs which in turn are often cut 
by transverse ridges, thus creating a number of deep ocean basins. 
Mountain peaks on some of the ridges rise almost abruptly out of the 
ocean depths to form islands, some of which have little or no insular 
shelves. 

Now, if we poured back from our mammoth container enough of 
the water to fill the deep ocean basins up to the outer edge of the 
continental shelf we would cover about 128,000,000 square miles, or 
approximately two-thirds of the earth's total surface. We would 
then have left, high and dry, the six continents including their con- 
tinental shelves, whose total area would cover approximately 
68,500,000 square miles. Of this total, the continental shelves of the 
world (including insular shelves) are estimated at approximately 
10,500,000 square miles, roughly 18 per cent of the 58,000,000 square 
miles of present dry land areas, and about 7.6 per cent of the total 
ocean areas of the world. 29 It is worth observing in passing that 
while the stakes are high with respect to exploiting the resources of 
the continental shelves of the world in that these shelves are equal 
to almost one-fifth of the land area of the world, the stakes will be 
even higher when science and technology discover ways of exploiting 
the deep ocean basins which are about twelve times the area of the 
continental shelves. 



27 Pratt, "Petroleum on the Continental Shelves," 31 Bulletin of American 
Association of Petroleum Geologists, 657 (1947). 

28 Sverdrup, Johnson and Fleming, op cit., footnote 19 (note 5-1 at 11). 

29 Umbgrove estimates the shelves of the world at 27,500,000 square kilometers, 
or 7.6 per cent of the surface of the oceans. Umbgrove, op. cit., footnote 19 (at 
99) . Also see Sverdrup, op. cit., footnote 19 (note 5-1 at 21) . 

Calculations here are those of the writer based upon figures given in Sverdrup 
et al., pp. 9-15. The total area of the surface of the earth is approximately 
197,000,000 square miles. Of this total, the area of the oceans, including adjacent 
seas, is approximately 139,000,000 square miles, leaving 58,000,000 square miles 
of land mass area. Of the submarine areas under the oceans, the continental and 
insular shelves comprise about 10% million square miles, with the continental 
slopes and deep ocean areas totaling 128,500,000 square miles. 



15 

Then if we poured back the rest of the water remaining in our 
container after filling the deep ocean basins, it would spill over those 
basins on to the continental shelves up to the shore lines of the dry 
land areas of the earth. 

From a geological point of view, the present dry land areas of the 
world, which are traditionally referred to as continents, are only the 
major parts of the continents. More accurately, the continents in- 
clude the present "dry land" areas totaling some 58,000,000 square 
miles plus their continental shelves of approximately 10,500,000 
square miles. 

Hence, when the continental shelves are defined it is important to 
stress this oneness of relationship of the shelves to their continents 
by referring to the shelves as the outward extensions of the continents 
covered by comparatively shallow waters which, at approximately 
200 meters depth at the outer edges, drop off rather sharply down the 
continental slopes into the deep ocean basins. 30 

It should be emphasized that the continental shelves do not project 
out from the continents of which they are an integral part like huge 
awnings hanging from the sides of a building. On the contrary, the 
continental shelves are generally the outward parts of a shelving 
plain extending inland from the shoreline to the foothills of the conti- 
nental heights and extending outward from the shoreline under the 
ocean waters to the edge of the deep ocean basins. In some parts of 
the world, notably off the west coast of South America (in particular, 
off the coasts of Peru and Chile), and off the east coast of Africa, 
there is practically no continental shelf, the edge of the steep-sided 
ocean basin coming almost to the shoreline. This geological fact has 
given rise to some legal problems in connection with the extensive 
claims to sovereignty over the high seas by certain South American 
countries, notably Chile, Ecuador, and Peru. 31 



^Rutten, ed., "Geological Nomenclator" 7 (1929). The continental shelf 
is described as, "the submarine continuation of the continent area up to about 
the 100 fathom line." (Emphasis added.) Also see Prep. Doc. 2, which says 
at p. 13: ". . . [T]he shelf is a borderline area alternately submerged and ex- 
posed a true extension of the neighbouring continents." (Emphasis added.) 

31 See Appendix K for a Synoptical Table of Claims to the Continental Shelf. 
The problems involved are discussed in detail, infra, pp. 51-58. It is particularly 
encouraging to note that although Chile, Ecuador, and Peru have not officially 
changed their claims of a 200-mile breadth of continental shelf, including sov- 
ereignty over the superjacent waters without reference to the depth of those 
waters, all three countries have signed the Convention on the Continental Shelf 
• see Appendix J). Since Article 3 of that Convention provides that "the rights 
of the coastal State over the continental. shelf do not affect the legal status of 
the superjacent waters as high seas . . .," a provision which is contrary to their 
previous unilateral claims, it is hoped that by signing the Convention these three 



16 

All maps tend to give an incorrect perspective of the true conti- 
nental shelves because they show the shelves as beginning at the shore 
lines of the continents, whereas in fact that part of each shelf which 
begins at the water's edge and runs out to the start of the ocean basins 
at the 200 meter depth is merely the seaward or underwater part of the 
total continental shelf plain. As one geologist has stated : 

"The inland upper edge of this plain, an elevation of about 
600 feet above sea-level, marks the mean level of the land- 
and- water surface of the globe; its lower edge, at an eleva- 
tion of about 600 feet below sea-level marks the brink of the 
steep continental slope, which descends into the deep oceanic 
basins proper. Its outer edge also marks the depth limit of 
effective wave ,and current action on the sea floor and the 
limit to which sunlight is able to penetrate below the surface 
of marine waters." 32 
We need not concern ourselves here with the various theories ad- 
vanced by scientists relative to the origin of the continental shelves. 33 
It is essential, however, to any intelligent discussion of the merits of 
various legal theories which have been advanced to justify the claims 
by states to the resources of their shelves to remember that geolog- 
ically the continental shelves are as much a part of their respective 
continents as are the dry land areas. Therefore, from a geological 
standpoint, it is not a question of whether the continental shelves are 



important countries, which have so much to contribute to the orderly develop- 
ment of the law of the sea, have now tacitly withdrawn their exclusive claims 
in the larger interest of the maximum inclusive use of the high seas. This hope 
is expressed despite the joint declaration by the chairmen of the delegations of 
Chile, Ecuador, and Peru during the closing days of the conference, reaffirming 
their extensive claims to high seas fisheries: "The reasons which, in recent 
years, have led Chile, Ecuador, and Peru to enact certain legislative provisions 
and to enter into certain agreements — to which Costa Rica has become a party — 
still remain valid." U.N. Doc. A/CONF. 13/L. 50. 

32 Pratt, op. cit., footnote 27 (note 6-5 at 658) Bourcart also relates the con- 
tinental shelf and the coastal plains. Bourcart, op. cit., footnote 19 (note 5-1 at 
155-160). 

33 For summary statements of the origin of the continental shelves, see Prep. 
Doc. 2, pp. 8-10; Umbgrove, "Origin of the Continental Shelves," 30 Bulletin 
of American Association of Petroleum Geologists, 249-253 (1946) ; The conti- 
nental shelves have been built up essentially in the following ways: (1) Sedi- 
mentation ; (2) Erosion, the cutting by waves of land areas and coastal terraces 
during times of lowered sea level caused by glaciers on the continents; (3) 
Glacial action ; (4) Bulging of the continent and concomitant downwarping of 
the submerged part; (5) Blockfaulting and folding, of which the most typical 
example is found along the southern coast of California. 



17 

contiguous (i.e., near to the continents), as has been suggested, 34 but 
rather that they are in fact an integral part of the continents. Geo- 
logically, the question is not one of contiguity but of continuity* 5 

2. The Problem of Irregularities in the Shelf 

Although the above geological description of the continental shelves 
is the predominant one, subject to the refinements and special distinc- 
tions by some scientists which have been noted, not all shelves follow 
the broad general pattern, a fact which has been of grave concern to 
international lawyers and particularly to the International Law Com- 
mission in its deliberations. 36 

The first problem arises from the extreme variation in the widths 
of the various shelves. The average width for shelves of the entire 
world is approximately 30 miles, but the range is from zero to more 
than 800 miles. 37 This geological fact has prompted some states with 
little or no continental shelves to make extensive claims to the re- 
sources of the high seas adjacent to their coasts to "compensate" for 
the lack of shelves. 

The second problem results from the fact that the depth of the edge 
of the continental shelf, although generally conforming to the 200 
meter or 100 fathom line, actually varies from less than 100 meters to 
more than 400 meters, even though the unevenness in configuration is 
generally not more than 100 meters except in glaciated areas. 38 The 
problem facing the International Law Commission and the Geneva 
Conference was whether to use an arbitrary figure of 200 meters or 
some other figure as the depth of superjacent waters to delimit the 
outer edge of the shelf, 39 even though any such arbitrary figure would 



34 U.N. Doc. A/2456, 14, par. 73 (1953) ; U.N. Doc. A/3159, 43, par. 8 (1956). 

35 Sir Hersch Lauterpacht uses the terms contiguity and continuity interchange- 
ably in support of the view that contiguity is the valid legal basis for unilateral 
claims by states of sovereignty over adjacent submarine areas, and he criticizes 
attempts to distinguish between them. 27 B. Y.I.L. 423 ( 1950 ) . 

36 See reports of the International Law Commission. U.N. Docs. A/1858 
(1951), A/2456 (1953), A/3159 (1956). 

3T Sverdrup et al., op. cit., footnote 19. Also see Carsey, "Geology of Gulf 
Coastal Area and Continental Shelf," 34 Bulletin of American Association of 
Petroleum Geologists, 361-385 (1950) ; Kuenen, op. cit., footnote 19 (at 105). 

38 The Association of Physical Oceanography agreed upon the following defini- 
tion : "Continental Shelf, Shelf Edge . . . The zone around the continent, ex- 
tending from the low-water line to the depth at which there is a marked increase 
of slope to greater depth. Conventionally its edge is taken at 100 fathoms (or 
200 metres) but instances are known where the increase of slope occurs at more 
than 200 or less than 65 fathoms . . ." Also see Prep. Doc. 2, p. 13. 

39 Several proposals were defeated which would have substituted the following 
criteria : 200 meters depth but not beyond 100 miles from the outer limit of the 
territorial sea (Yugoslavia, U.N. Doc. A/CONF. 13/C. 4/1.12) ; 550 meters 



18 

often not conform to geological facts, or whether to use some other 
criterion, or a combination of criteria. The Geneva Convention on the 
Continental Shelf adopted a combination of criteria, defining the 
continental shelf in terms of a 200 meter depth, or "beyond that limit, 
to where the depth of the superjacent waters admits of the exploita- 
tion of the national resources of the said areas. . . ." - 40 This delimi- 
tation of the shelf may be described as both fixed and flexible. It is 
fixed at the 200 meter depth until such time as science and technology 
make possible exploitation beyond the 200 meter depth limit, after 
which it will become highly flexible and subject to constant change as 
technology advances. 41 

Finally, in addition to the legal problems arising from varying 
widths of the continental shelves and the varying depths of the outer 
edge, the International Law Commission and the Geneva Conference 
struggled with the problems which arise from the uneven configuration 
of the shelves. Within the continental shelves themselves scientists 
have found great basins with depths in excess of 200 meters, as well as 
plateaus covered by shallow water, making for hundreds of irregular- 
ities from the common concept of the continental shelves. 42 Three 
categories of depressions have been distinguished : 43 

(a) First are depressions that connect with the deep sea beyond 
the outer edge of the shelf but over a sill at the level, or nearly at the 
level of the shelf floor. A good example of this type is the longitudinal 
trough along the coast of Norway which in effect splits the continental 
shelf into an inner and outer part. The problem, of course, is whether 
the outer part (i.e., the sill) is to be considered a part of the total 
continental shelf of the coastal state. 

(b) Second are depressions or broad, flat troughs below the 200 
meter depth which do not have a sill in the outer part. These types 
predominate off glaciated coasts such as the Cabot Strait Trough, 
south of Newfoundland. 

(c) Third are the narrow canyon-like depressions which traverse 
the outer edge of the continental shelf, sloping out to the deep-sea 
floor. 



(Netherlands, U.N. Doc. A/CONF. 13/C. 4/L. 19) ; and (United Kingdom, U.N. 
Doc. A/CONF. 13/C. 4/L. 24/Rev. 1) ; 1,000 meters (India, U.N. Doc. A/CONF. 
13/C. 4/L. 29), later revised to 550 meters of superjacent waters (U.N. Doc. 
A/CONF. 13/C. 4/L. 29/Rev. 1) ; shelf edge or 200 meters (Canada, U.N. Doc. 
A/CONF. 13/C. 4/L. 30). Also see Whiteman, op. cit., footnote 12 (at 629, 634). 

40 Article 1. 

41 For a recent criticism of this twofold definition of the continental shelf, 
see Young, op. cit., footnote 12 (at 733, 735). 

42 Kuenen, op. cit., footnote 19 (at 154, 485 et seq) ; Umbgrove, op. cit., footnote 
19 (at 120). 

43 Prep. Doc. 2, p. 14 and Annex thereto, p. 7. 



19 

The problem which arises in situations (b) and (c) above is 
whether to include the troughs and depressions as part of the shelves, 
and if so, how to delimit the claims. The suggestion of adapting the 
straight baseline method of measuring territorial waters to the de- 
limiting of the deep submarine shelf indentations will not likely 
meet with much approval. 44 Nor is such a method necessary in view 
of the depth-of-exploitability criterion for determining the extent 
of the continental shelf beyond the 200 meter depth. 

3. Legal Definitions of the Continental Shelf 

In general the legal definitions of the continental shelf have relied 
upon the common geological concept of the shelf as the gentle-sloping, 
submarine extension of the continent into the sea, the outer edge 
of which is at a depth of some 100 fathoms or approximately 200 
meters, beyond which the shelf or platform begins a rapid descent 
towards the ocean depths. 

In the Gidel Memorandum on The Regime of the High Seas, which 
the International Law Commission had before it at its second session 
in 1950, it was suggested that "it seems advisable for jurists to rely 
on the common concept of the continental shelf." * The memoran- 
dum recounted the fact that the official press release which accom- 
panied the United States (Truman) Proclamation of 1945 46 referred 
to the common definition of the shelf as delimited by the 100 fathom 
isobath. The virtues of uniformity, -fixity and certitude were em- 
phasized in support of the 200 meter or 100 fathom depth limit. 47 

Despite the insistence of several international lawyers and organ- 
izations that the common concept of the 200 meter isobath be followed 
in describing and delimiting the continental shelf, others objected to 
such a precise delimitation and the claims of many states from 1945 
to 1950 were not so delimited. 48 Partly for the reason that the Inter- 
national Law Commission wished to define the continental shelf 
legally in terms broad enough to encompass most or all of the various 
claims which had been made, and more particularly because the Com- 
mission found that "the varied use of the term by scientists is in itself 
an obstacle to the adoption of the geological concept as a basis for 
legal regulation of the problem," 49 the Commission departed from 

"Ibid., at 16. 

45 U.N. Doc. A/CN. 4/32, 50 (1950) . 

46 "Press Release, 28 Sept. 1945," 13 Department of State Bulletin 484 (1945). 
4T U.N. Doc. A/ON. 4/32, 50-51 (1950). Also see Feith, "Rights to the Sea 

Bed and Its Subsoil," Report of Conference of International Law Association, 
126 (Copenhagen, 1950). 

48 See Appendix K, Synoptical Table of . Claims, particularly the claims of 
Mexico, Argentina, Chile, and Peru. 

49 U.N. Doc. A/1858, 17 (1951) . 



20 

the geological concept in its 1951 draft articles by defining the con- 
tinental shelf as the submarine areas outside of territorial waters 
"where the depth of the superjacent waters admits of the exploitation 
of the natural resources of the seabed and subsoil." 50 This may be 
referred to as the depth-of -exploitability definition. 

Three things are noteworthy about this 1951 legal definition: (1) 
First, is the absence of any depth limit for the outer edge of the 
continental shelf; (2) second, is the reference to the continental shelf 
as being the submarine area outside the area of territorial waters ; and 
(3) third, is the use both of the term "continental shelf" and "sub- 
marine area." Comments on each of these three aspects of the first 
definition by the International Law Commission are necessary for a 
clarification of some of the subsequent problems which have arisen. 

The Commission explained its preference for the depth-of- 
exploitability test for defining the continental shelf, in preference to a 
fixed limit of superjacent waters, such as 200 meters, by saying that 
the fixed limit "would have the disadvantage of instability" because 
"technical developments in the near future might make it possible 
to exploit resources of the sea bed at a depth of over 200 meters." 51 

With respect to the second aspect of the definition in the 1951 
draft articles, namely, that the continental shelf is the submarine 
area outside the area of territorial waters, this is indeed contrary to 
the geological definition. According to this legal definition, the con- 
tinental shelf does not begin at the shoreline of the dry-land mass, 
but begins at a point from three to twelve miles out from the shore- 
line, depending upon which width the coastal state has claimed as 
defining the limits of its territorial waters. Under this legal defini- 
tion the continental shelf becomes a sort of submerged ring around 
the continent or island, attached to the submarine area under the 
territorial sea, which in turn is attached to or forms an outward 
extension of the continent or island. 

Clearly this aspect of the legal definition does not conform to sci- 
entific fact. Geologically the submarine area under the territorial 
sea, whatever its width, is as much a part of the continental shelf 
as is the submarine area beyond the territorial sea. However, the 
Commission justified its exclusion of the submarine areas under the 
territorial sea from the definition of the continental shelf by reiterat- 
ing the long-established law of territorial waters, 52 saying that the 

50 Ibid., Art. 1 of 1951 Draft Articles on the Continental Shelf and Related 
Subjects. ( Emphasis added. ) 

61 U.N. Doc. A/2456, 12 (1953) . 

52 See generally, Jessup, The Law of Territorial Waters and Maritime Juris- 
diction (1927) ; Fulton, The Sovereignty of the Sea (1911) ; Crocker, Extent of 
the Marginal Sea (1919) ; Riesenfeld, Protection of Coastal Fisheries under 
International Law (1942). 



21 

"submarine areas beneath territorial waters are, like the waters above 
them, subject to the sovereignty of the coastal State." 53 

Thus the Commission was differentiating in effect, though not in 
the geological sense, between an "inner" and an "outer" shelf ; meaning 
by the inner shelf only that part of the total continental shelf (ge- 
ologically defined) which is under the territorial sea, and meaning by 
the outer shelf only that part of the total shelf which is outside of 
the territorial sea. This designation of the continental shelf as the 
submarine area outside of territorial waters, whatever their width, 
was continued by the Commission in its subsequent draft articles of 
1953 and 1956 and is now a part of the Geneva Convention on the 
Continental Shelf. 54 

This "legal" distinction between inner and outer portions of the 
continental shelf was made by President Truman in his famous 
proclamation of 28 September 1945, 55 in which the United States 
claimed the natural resources of the subsoil and seabed of the conti- 
nental shelf beneath the high seas — i.e., outside of territorial waters. 56 

Subsequently, the Congress of the United States, in resolving the 
dispute between the federal government and the individual coastal 
states in favor of the states, following the United States Supreme 
Court decisions which held for the federal government against 
California, 57 Texas, 58 and Louisiana, 59 clearly distinguished in two 
different acts between the inner and outer portions of the total conti- 
nental shelf as defined geologically. The first of these acts is known 
as the Submerged Lands Act, 60 approved May 22, 1953 ; the other is 
entitled the Outer Continental Shelf Lands Act, 61 which became law 



53 U.N. Doc. A/1858, 18, Comment 9 (1951) 

54 See Appendix D. 



55 59 Stat. 884 (1945) ; 10 Federal Register, 12303 (1945) ; 13 Department of 
State Bulletin, 485 (1945). 

56 The distinction was also emphasized in the State Department press release 
of the same date which explained the Truman Proclamation in part as follows : 
"The rapid development of technical knowledge and equipment occasioned by 
the war now makes possible the determination of the resources of the submerged 
lands outside of the three-mile limit. With the need for the discovery of addi- 
tional resources of petroleum and other minerals, it became advisable for the 
United States to make possible orderly development of these resources. The 
proclamation of the President is designed to serve this purpose." 12 Department 
of State Bulletin, 484 (1945) . 

57 United States V.California, 332 U.S. 19 (1947). 

58 United States v. Texas, 339 U.S. 707 (1950) . 

59 United States v. Louisiana, 339 U.S. 699 (1950). 

60 43 U.S.C.A. pars. 1301-1303, 1311-1315 ; 67 Stat. 29, May 22, 1953. 

61 43 U.S.C.A. 1331-1343 (Ch. 345— Pub. Law 212), 67 Stat. 462 (T. 34, par. 
524; T. 43, par. 1331 note, 1331-43, Aug. 7, 1953). Continental Shelf— Reserving 
and placing certain resources under jurisdiction of Secretary of Interior, 5 par. 
485 note. Executive Order No. 9633. 



22 

on August 7, 1953. Section 2 of the latter act defines "outer continental 
shelf" as "all submerged lands lying seaward and outside of the area 
of lands beneath navigable waters as defined in Section 2 of the 
Submerged Lands Act. . . ." (i.e., all submerged lands outside of 
the three mile limit on the Atlantic and Pacific coasts and outside the 
three-league limit in the Gulf of Mexico.) . 

The third aspect of the 1951 definition of the continental shelf by 
the International Law Commission which is worthy of comment is the 
use in the definition both of the term "continental shelf" and "sub- 
marine area." Because the accidents of geography in the world have 
resulted in the generous endowment of some countries with broad 
continental shelves while at the same time depriving other countries 
of such shelves, and because the term "continental shelf" is not accu- 
rate, geologically speaking, when applied to certain submarine areas 
of the world such as those in the Persian Gulf and the Gulf of Paria 
where the depth of the superjacent waters never reaches 200 meters, 
or when applied to insular shelves, the International Law Commission 
seriously considered the possibility of adopting a term other than 
"continental shelf." 

Terms suggested were "submarine platform" 62 and "submarine 
area," 63 the latter having been used in the British- Venezuela Treaty 
relative to the Gulf of Paria 64 and in the British Order-in-Council 
following the treaty. 65 The Commission finally decided to use the 
term "continental shelf," giving as its reason, "because it is in current 
use and because the term 'submarine areas' used alone would give no 
indication of the nature of the submarine areas in question." 66 It is 
submitted that the 1951 definition by the International Law Commis- 
sion in Article 1 was right in boldly using the term "continental 
shelf" despite the fact that it was then a relatively new term in 
international law. Now, of course, the term is accepted parlance in 

62 U.N. Doc. A/ON. 68, p. 4. 

63 Young, "Legal Status of Submarine Areas Beneath The High Seas," 45 
A.J.I.L. 227 (1951). Several states indicated their dissatisfaction with the 
term "continental shelf" and suggested a preference for the term "submarine 
areas." See Comments by Governments on Draft Articles on the Continental 
Shelf and Related Subjects, U.N. Doc. A/CN. 4/55 (1952). Also see Francois, 
"Report on the Regime of the High Seas," U.N. Doc. A/CN. 4/60; U.N. Doc. 
A/2456, Annex II, 42-72 (1953). See particularly the comments of Belgium 
(Ibid., at 42) ; Israel (Ibid., at 59) ; and Sweden (Ibid., at 65). It is interesting 
to note that Mouton entitled his excellent book The Continental Shelf, but 
objected to the use of the term, preferring instead the term "shelf" without 
the adjective "continental." Mouton, The Continental Shelf, at 45 (1952). 

64 Great Britain Treaty Series #10 (1942). 

85 Order-in-Council, Aug. 6, 1942, Submarine areas of the Gulf of Paria (annex- 
ation). 

68 U.N. Doc. A/1858, 17, Comment 3 (1951) . 



23 

international law circles, notwithstanding the fact that the legal 
definition as embodied in the Geneva Convention is at variance in 
several respects with the scientific definition. 

In addition to the controversy among governments and legal scholars 
over the depth-of-exploitability definition of the continental shelf 
versus a fixed depth limit of 200 meters or some other depth, it is 
interesting to note another variation which was suggested, because 
it underlies the unjustified claims of certain Latin American countries 
to sovereignty over a 200-mile wide belt of high seas. Yugoslavia 
favored not only a depth limit of 200 meters, but also a combination 
of this limit with one of width, expressing approval of Mr. El Khouri's 
(Syria) proposal of a "minimum boundary 'X' miles from the coast, 
regardless of the depth, and a maximum boundary 'X' meters of depth 
regardless of the distance from the coast" 67 in order to avoid mis- 
understandings among neighboring countries. 68 

The Yugoslav Government was fearful that unless each country 
was given a minimum continental shelf in terms of distance from the 
shore, a country with advanced technology could, particularly in the 
case of a common continental shelf, extend its claims in terms of its 
technology. Hence, the Yugoslav Government argued, a country with 
the most advanced technology could claim vast areas of the deep ocean 
basins whereas other countries might be limited, because of inadequate 
technology, to extremely shallow waters. 

It seems clear that the Yugoslav Government's interpretation of 
the Commission's language in Article 1, "where the depth of the super- 
jacent waters admits of the exploitation of the natural resources of 
the sea-bed and subsoil," was erroneous. This depth which admits of 
exploitation should be interpreted absolutely in terms of the most 
advanced technology in the world, and not relatively in terms of the 
particular technology of any one coastal state. 69 

The whole problem of defining the continental shelf in terms of 



67 U.N. Doc. A/CN. 4/SR. 113, 18-19. This proposal was defeated by a substan- 
tial (7-1) vote in the Commission. (IMd., at 23.) 

68 U.N. Doc. A/2456, p. 71 (1953). 

69 In support of this position see Mouton, op. cit., footnote 63 (at 42) ; and 
U.N. Doc. A/ON. 4/60, 102. Young makes an interesting suggestion for keeping 
all nations informed of the latest developments in exploitability of the conti- 
nental shelf: ". . . [I]t might be possible for each party to file periodically 
with the Secretary General of the United Nations a statement indicating the 
maximum depth at which it was exploiting the resources of its shelf. The 
greatest such figure, established to the satisfaction of the Secretary General, 
would determine the outer shelf limits for all parties until the next succeeding 
report." Young, "The Geneva Convention on the Continental Shelf: A First 
Impression." 52 A.J.I.L. 733, 735 (1958). 



24 



70 



width was discussed at length by the International Law Commission, 
particularly in terms of a minimum distance from the coast or from 
the outer limit of territorial waters. Two considerations motivated 
this discussion : (1) an awareness of the fact that certain Latin Amer- 
ican countries had framed their proclamations in terms of distance 
from their coasts, each claiming 200 nautical miles, regardless of 
the existence of any continental shelf in the geological sense, 71 and 
(2) the apparent need to make some sort of concession to those coun- 
tries which opposed the definition in terms of the 200 meter depth 
limit because such a definition, without some provision for the coastal 
states which had only limited continental shelves, would sharply 
circumscribe their claims. 

Despite the many arguments against defining the continental shelf 
in terms of width, the Commission by the narrow margin of six to 
five originally voted a concession to the states without continental 
shelves by adopting a proposal which read, 

"The rights of control and jurisdiction referred to in the 
present chapter belong, up to a distance of twenty miles be- 
yond territorial waters, to all the coastal States which do not 
possess a continental shelf as defined in article 1." 72 
Finally, however, because of the sharp criticism by the minority, 
the Commission in 1951 adopted Article 1 without any reference to 
width in defining the continental shelf, 73 a policy which was followed 
in the 1953 and 1956 draft articles and in the Geneva Convention on 
the Continental Shelf. 

Several conclusions emerge from the various discussions in the Inter- 
national Law Commission, the Geneva Conference, and among legal 
scholars, relative to defining the continental shelf in terms of an arbi- 
trary width. First, since the widths of the shelves vary so greatly, 



70 U.N. Docs. A/CN. 4/SR. 66, 26; A/CN. 4/SR. 113, 18-19; A/CN. 4/SR. 117, 
10, 19. In the third session of the Commission, Mr. Yepes (Colombia) proposed, 
"The rights of control and jurisdiction referred to in the present chapter belong, 
up to a distance of twenty miles beyond the coast, to all Coastal States, even 
if they do not possess a continental shelf in the geological sense." (IMd., at 10). 
A committee of the International Law Association also argued for a minimum 
breadth of 20 miles from the coast. U.N. Doc. A/CN. 4/SR. 66, 26. 

71 For citations regarding the claims of Chile, Ecuador, and Peru to a maritime 
zone of 200 miles for exclusive exploitation of fisheries, and related develop- 
ments, see MacChesney, U.S. Naval War College International Law Situation 
and Documents, 1956, 264-294, 448, 455, 486 (1957). Costa Rica also followed 
the lead of Chile in claiming 200 miles of continental shelf, including sovereignty 
over the superjacent waters. U.N. Leg. Series 9, p. 9 (1951). Also see Mac- 
Chesney, op. cit., 451. 

72 U.N. Doc. A/CN. 4/SR. 117, 15. 

73 U.N. Doc. A/1858, 17 (1951). 



25 

at least when the 200-meter depth limit is used either as the geological 
or legal norm to mark the outer edge of the shelf, an arbitrary width 
criterion is totally unrelated to the norm and hence impracticable. 
Second, any attempt to grant all coastal states a minimum continental 
shelf in terms of distance from the shore, or from the outer limits 
of the territorial sea, in order to "compensate" those states which have 
only extremely narrow continental shelves, is completely illogical. 74 
Third, suggestions to grant a minimum breadth of continental shelf 
in order to permit the coastal state to explore and exploit the resources 
of the submarine subsoil from the mainland is unnecessary because 
states may now exploit those resources without legal limitation. Such 
exploitation is circumscribed only by the limitations of science and 
technology. If the tunnels and other devices for exploiting such 
resources originate on the continent (or island), interference with 
either navigation or fishing is not likely to occur and hence such 
exploitation is completely outside the continental shelf problem. 

Finally, when the continental shelf is defined in terms of depth-of- 
exploitability, as well as in terms of the 200-meter depth limit for the 
outer edge, as was done in the Geneva Convention, there is no need 
to make any provision for a minimum or maximum width of the shelf 
area. Under the depth-of-exploitability definition the maximum 
width of the shelf capable of exploitation will continue to increase 
as the world's technology for exploiting the submarine areas im- 
proves, whether those areas are what the geologists describe as the 
"continental shelf" or the deeper, more steeply inclined areas known 
as the "continental slopes." For coastal states facing the open oceans 
the only real limitation to exploitation will be that of technology. 
For states with common shelves — i.e., states whose coasts are oppo- 
site each other, or adjacent — the area of exploitability for each state 
will be determined and delimited either by agreement or by an equi- 
table allocation of the submarine areas to the respective claimants 
as provided for in the Geneva Convention. 75 

When the Commission's 1951 depth-of-exploitability definition, al- 



74 A good summary of the absurdity of the "compensation" theory was that 
made by the International Bar Association in London : "This leads to a question 
of justicia distributiva. It may be hard on Switzerland that it has no sea coast 
to base a fishing industry upon, as well as it may be hard on Holland that it has 
no Alps to boost its tourist trade ; do the lack of such natural assets in itself 
justify the consideration of compensatory measures. . . ." Report of the Com- 
mittee on Coastal Waters and Appurtenant Subsoil, Third International Confer- 
ence of the Legal Profession, International Bar Association (London, 8 July 
1950) . 

75 See the Geneva Convention on the Continental Shelf, Articles 6 and 7, Ap- 
pendix D. 

607631—61 3 



26 

ready excoriated by several of the members of the Commission, 76 was 
sent out to various governments for comments, it was further criti- 
cized. 77 In addition, a number of legal scholars also found fault with 
the Commission's 1951 depth-of-exploitability definition. Mouton, 
referring with favor to the reason given by the United Nations Secre- 
tariat in its 1950 "Memorandum on the Kegime of the High Seas,' ; 
argued that a fixed depth limit "possesses the characteristics of uni- 
formity, fixity and certitude required for legal transactions." 78 Like 
Mouton, Waldock felt that the 1951 definition by the Commission in 
terms of exploitability was too vague and lacked the advantages of a 
delimitation of this "new right" by a fixed depth limit. He said, 

"This definition is extremely vague, being open to subjec- 
tive interpretations by the coastal States which might result 
in very large claims." 79 

The United States, on the other hand, found no serious fault with 
the 1951 depth-of-exploitability definition, expressing "general agree- 
ment with the principles which appear to inspire the draft articles." 80 

However, in view of the many criticisms by various governments 
and writers of the 1951 depth-of-exploitability definition of the con- 
tinental shelf, Mr. Francois, in his fourth report on the regime of 



78 Perhaps the strongest critic on the Commission of the whole concept of the 
continental shelf was Georges Scelle (France) who considered it a legal fiction. 
(U.N. Doc. A/CN. 4/SR. 117, 19) His two main objections to the continental 
shelf doctrine were: (1) the uncertainty of what is included in the so-called 
continental shelf since, geologically there are often several submarine platforms 
or pedestals, and (2) any rights of a coastal state over submarine areas con- 
tiguous to its shore should be limited to the possibility of its actual exploitability 
which is now not over 30 to 40 meters (90 to 120 feet). Since the future is sub- 
ject to so much scientific speculation, a precise legal norm must be developed in 
terms of the technical and financial possibilities of a state to explore and exploit 
the continental shelf. Scelle, "Le Plateau Continental," Revue Genirale de 
Droit International 362, ( 1955) . 

77 Comments by Governments on Draft Articles on the Continental Shelf and 
Related Subjects. U.N. Doc. A/CN. 4/55 (May 1952). Also see Francois, 
"Fourth Report on the Regime of the High Seas." U.N. Doc. A/CN. 4/60 ; U.N. 
Doc. A/2456 Annex II, 42-72 (1953). 

78 Mouton, op. cit., footnote 63 (at 43). 

79 U.N. Doc. A/CN. 4/60, 23. Also see Report of the Forty-Fifth Conference of 
the International Law Association, Lucerne, 148 (1952). 

80 U.N. Doc. A/2456, Annex II, 70 (1953). The only United States comment 
with respect to Article 1 of the 1951 draft articles was to suggest "whether it 
would not be advisable to make it clear, at least in the commentaries, that control 
and jurisdiction for the purpose indicated in the draft articles mean in fact an 
exclusive, but functional, right to explore and exploit." (Ibid. This U.S. claim 
to an exclusive right was vigorously opposed by Colban at the 1952 meeting of the 
International Law Association. See Report of the Forty-Fifth Conference of 
the International Law Association, Lucerne, 150 (1952) .) 



27 

the high seas, proposed the adoption of a 200 meter depth limit, 81 
explaining that the criterion of exploitability had been widely criti- 
cized "for not laying down a fixed limit, and the view had been ex- 
pressed that a depth of 200 metres should be adopted." 82 

Mr. Francois' fourth report, together with the comments by the 
various governments on the 1951 provisional draft articles, were care- 
fully analyzed by the Commission at its 1953 sessions in Geneva. 
Despite some vigorous dissents to the effect that the Commission 
should not reverse its earlier (1951) decision and revert to a geological 
definition 83 because the criterion of exploitability was "more flexible, 
and should be maintained," 84 and because "if a geological definition 
was now adopted, states like Chile and Peru, which had no continental 
shelf in the geological sense of the word, would be placed at a serious 
disadvantage," S5 and also because the "possibility of exploiting nat- 
ural resources at a depth greater than 200 metres must be envisaged," 86 
the Commission yielded to the criticisms of its 1951 definition and 
adopted the 200 meter depth limit. 

Thus the Commission had returned to the common geological con- 
cept of the continental shelf with a fixed depth for the superjacent 
waters as marking the outer edge of the shelf. Supporting the 200 
meter depth limit in preference to the depth- of -exploit ability defini- 
tion, Mr. Lauterpacht (later Sir Hersch Lauterpacht, a judge on the 
International Court of Justice), said, 

". . . an exact limit has the merit of clarity, which is ex- 
tremely desirable, since in matters pertaining to the continen- 
tal shelf some governments are inclined in addition to 
legitimate assertion of right, to make others." 87 

He made critical reference to the extensive claims which had been 
made by certain South American countries to sovereignty over re- 
sources of the high seas, saying, "this association of the assumption 
of title over submarine areas with sweeping claims to sovereignty over 
the high seas is mischievous in its results and must therefore be a 
cause for regret." 88 



81 U.N. Doc. A/CN. 4/60, 103, 123. 

82 U.N. Doc. A/CN. 4/SR. 195, 17. 

83 Ibid. 

84 U.N. Doc. A/CN. 4/SR. 196, 6. 

85 U.N. Doc. A/CN. 4/SR. 195, 18. 

86 U.N. Doc. A/CN. 4/SR. 196, 3. 



87 U.N. Doc. A/CN. 4/SR. 196, 6. 

88 Lauterpacht, "Sovereignty Over Submarine Areas," 27 B.Y.I.L. 413-414 
(1950). 



28 

At its eighth session in 1956 the Commission adopted a definition 
which combined the 200 meter depth limit with the 1951 depth-of- 
exploitability criterion, saying, 

". . . the term 'continental shelf is used as referring to the 
seabed and subsoil of the submarine areas adjacent to the 
coast but outside the area of the territorial sea, to a depth of 
200 metres (approximately 100 fathoms), or, beyond that 
limit, to where the depth of the superjacent waters admits 
of the exploitation of the natural resources of the said 
areas." 89 

This is the definition which was adopted by the Geneva Conference 
with only two slight modifications. 90 The first modification was the 
elimination of the parenthetical expression "approximately 100 
fathoms." The second was the addition of a sub-section, based upon a 
proposal by the Philippines, 91 which provides that "continental shelf" 
also includes "insular shelf." 92 

A careful analysis of the many discussions in the International Law 
Commission sessions of 1951, 1953 and 1956, and of the discussions in 
Committee IV and the plenary meetings of the Geneva Conference, 
suggests that the final definition of the continental shelf which was 
cast both in terms of a fixed outer limit (i.e., 200 meter depth of super- 
jacent waters) and a flexible outer limit (depth-of-exploitability even 
beyond a 200 meter depth) is an understandable compromise between 
divergent views in order to arrive at a definition which would be ac- 
ceptable to a majority of states and yet recognize the views of the 
minority states, many of which are located in areas of the world 



89 U.N. Doc. A/3159, Art. 67, 41 (1956) . 

90 U.N. Doc. A/CONF. 13/L. 55, Art. 1. The I.L.C. text, as amended was ap- 
proved in Committee IV of the Conference by a vote of 51 in favor, 9 votes 
against, with 10 abstentions (A/CONF. 13/C. 4/SR. 19, 4-5 (25 March 1958)). 

81 U.N. Doc. A/CONF. 13/C. 4/L. 26. The Philippine proposal was as follows : 
"All references in these articles to 'continental shelf shall be understood to 
apply also to similar submarine areas adjacent to and surrounding the coasts 
of islands." It was adopted in Committee IV by a vote of 31 in favor (U.S. 
included) 10 against, with 25 abstentions (U.N. Doc. A/CONF. 13/C. 4/SR. 19, 
4 (25 March 1958)). 

92 Actually, this addition to Article 1 of the Geneva Convention does nothing 
more than to formalize, as part of an article, what was formerly contained in 
the I.L.C. commentaries to its draft articles. In this case, commentary 10 to 
I.L.C. draft article 67 (1956) read, "The term 'continental shelf does not imply 
that it refers exclusively to continents in the current connotation of that word. 
It also covers the submarine areas contiguous to islands." (U.N. Doc. A/3159, 
42 (1956)). 



29 

where the geological formations do not conform to the usual pattern 
of the continental shelf. 93 

By stating the 200 meter depth limit first in the definition and em- 
phasizing it, both the International Law Commission's 1956 articles 
and the Geneva Convention stress the fact that the legal definition is 
based predominantly upon the scientific definition of the continental 
shelf. Moreover, the 200 meter depth limit has the advantage of being 
precise and certain, and is probably quite adequate for the next decade 
or more in view of the present state of offshore exploitation technology 
and the anticipated developments thereof. 94 

Then, by adding the alternative criterion of exploitability even 
beyond the 200 meter depth of superjacent waters, the Commission's 
articles and the Geneva Convention wisely took cognizance of several 
facts. First is the scientific fact, as explained previously, that the 
outer edge of the shelf is often found at depths considerably in excess 
of 200 meters, even though this figure is a good working average. 
Hence, by using the alternative depth-of -exploitability criterion, a 
coastal state is not deprived "arbitrarily of so obvious a part of its 
continental shelf." 95 Second, is the fact that a coastal state not only 
has sovereign rights over its continental shelf but, as advancing off- 
shore technology permits it to exploit the resources out to the 200 
meter edge of the shelf and beyond that into the greater depths of 
the continental slope, it also has sovereign rights beyond the geologi- 



93 In its commentaries to the 1956 articles the I.L.C. ". . . noted that the 
Inter- American Specialized Conference on 'Conservations of Natural Resources : 
Continental Shelf and Oceanic Waters,' held at Ciudad Trujillo (Dominican 
Republic) in March 1956, had arrived at the conclusion that the right of the 
coastal State should be extended beyond the limit of 200 metres, 'to where the 
depth of the superjacent waters admits of the exploitation of the natural re- 
sources of the seabed and subsoil'." (U.N. Doc. A/3159, 41 (1956).) 

94 Oil drilling in the continental shelf from fixed installations is currently pos- 
sible in about 55 meters (180 feet) of water. In the opinion of several scien- 
tists, it is expected that technological developments within the next ten years 
will permit the design of structures to facilitate the drilling of wells in water 
depths of 500 feet (152.5 meters) or greater and that oil exploitation is con- 
sidered possible in a 200-meter water depth but with a different type of struc- 
ture than is now being used. See "Recent Developments in the Technology of 
Exploiting the Mineral Resources of the Continental Shelf," U.N. Preparatory 
Document No. 20, <A/CONF. 13/25 (1958) ) . 

95 Young, "The Legal Status of Submarine Areas Beneath the High Seas," 45 
A.J.I.L. 235 (1951). Young approves the suggestion in the "Report of the Com- 
mittee on Rights to the Sea Bed and its Subsoil," Report of Conference of Inter- 
national Law Association 15 (Copenhagen, 1950). 



30 

cal edge of the shelf, 96 delimited only by technological developments 
and by the median line which separates common continental shelves 
of states opposite, or adjacent to, each other. Third, is the fact that 
the continental shelf is an integral part of the continent (or island) 
and that the coastal state is best able to exploit the resources of its 
continental shelf, broadly defined, whatever the depth of the super- 
jacent waters, in the interest of maximum development and utilization 
of the sea bed and subsoil resources for the benefit of all mankind. 

C. CLAIMS TO THE CONTINENTAL SHELF RESOURCES 
1. Early Claims to Sea Bed and Snl)soil Resources 

Despite the fact that one may not be sure exactly how many cen- 
turies ago the first claims were made to some of the resources of what 
we now call the sea bed of the continental shelf, one may infer that 
it was at least as early as the sixth century B.C. 97 

In modern times one of the first legislative acts claiming exclusive 
control over the sea bed resources (i.e., sedentary fisheries) was the 
British Colonial Act of 1811 which asserted dominion over the Ceylon 
pearl banks far beyond the three mile limit. 98 It authorized the 
seizure and condemnation of any boat found within the limits of the 
pearl banks or hovering near them and the anchoring of vessels in 
the vicinity was also regulated. At later dates similar additional 
regulations were issued by the British Colonial Office. 99 

Legislative action was also taken by Australia on several occasions 
from 1881 to 1898 for the protection and regulation of the sedentary 



98 In its commentaries to the 1956 articles, the I.L.C. said, "While adopting, to 
a certain extent, the geographical test for the 'continental shelf as the basis of 
the juridical definition of the term, the Commission therefore in no way holds 
that the existence of a continental shelf, in the geographical sense as generally 
understood, is essential for the exercise of the rights of the coastal State as 
defined in these articles . . . exploitation of a submarine area at a depth exceed- 
ing 200 metres is not contrary to the present rules, merely because the area is 
not a continental shelf in the geological sense." U.N. Doc. A/3159, 41 (1956). 

97 Jessup, The Law of Territorial Waters and Maritime Jurisdiction 15 (1927). 
Also see the interesting and much-cited article, Hurst, Whose Is the Bed of the 
Sea?, B.Y.I.L. (1923-24), at 34. On p. 37 he says: ". . . [t]he rights of the 
Crown in the bed of the sea must have been fixed at least as early as the thir- 
teenth century." 

98 Legislative Enactments, Ceylon, 1707-1879, Regulation No. 3 of 1811 for the 
protection of H.M. pearl banks of Ceylon. 

"Thurston, Pearl and Ghanh Fisheries (1894) ; Fulton, op. cit., footnote 52 
(at 697) ; Crocker, op. cit., footnote 52 (at 544) . 



31 



fisheries in Western Australia. 100 Whether this legislative action, and 
that taken with respect to sedentary fisheries off Queensland, 101 
applied to the sea bed beyond territorial waters is in dispute. Accord- 
ing to Riesenfeld, 102 Jessup, 103 and others, 104 it did operate to give the 
coastal state control of the sedentary fisheries over a wide area of the 
high seas well beyond territorial waters. 105 

Other states have also regulated sea bed resources beyond terri- 
torial waters (i.e., sedentary fisheries) for more than a century. 106 
However, one may conclude from an examination of the legislative 
acts and treaties, and from the few cases involving disputes over 
sedentary fisheries that the legal difficulties arising out of conflicting 
claims to sea bed resources beyond territorial waters have been infre- 
quent and have been resolved rather easily. 107 

The purpose of this brief resume is not to present an exhaustive list 
of all of the claims which have been made by states for several 
centuries, and particularly during the last century, to the sea bed 
resources of what we now refer to as the continental shelves. Rather, 
the purpose is to underscore the fact that for centuries man has been 
concerned to a modest extent — meaning within the limits of his 



100 The Pearl-shell and Beche-de-mer Fishery Act (1891), 45 Vict. No. 2, 
The Queensland Statutes, vol. 1, Brisbane, 1911. (Amended in 1886, 1891, 1893, 
1896 and 1898.) The act of 1886 is entitled Shark's Bay Pearl Shell Fishery 
Act, 50 Vict. No. 14. Sec. 8 provided in part as follows : "All pearls and pearl 
shells lying or contained within the limits of any licensed area shall, during 
the continuance of the license, be deemed to be the absolute property of the 
licensee for all purposes, civil or criminal . . .". See reference to the 1186 
Act in the Indian case of 1904 which found that a claimant had a property 
right in chanks on beds in the open sea based upon immemorial rights handed 
down from sovereign to sovereign. Annakumaru Pillai v. Muthupayal, XXVII 
Indian Law Reports, Madras Series, 551, (1904) . 

101 Pearl Shell and Beche-de-mer Fishery Acts, 1881-1931, cited in O'Connell, 
"Sedentary Fisheries and the Australian Continental Shelf," 49 A.J.I.L., 186 
(footnote 11) (1955). 

102 Riesenfeld, op. cit., footnote 52 (at 170) . 

103 Jessup, op. cit., footnote 97 (at p. 16). 

10 *Mouton, op. cit., footnote 63 (at 140) ; II Hackworth, Digest of Interna- 
tional Law, 678 (1941). 

105 An Australian writer challenges the view that the claims are to sea bed 
resources of the high seas, contending that such view is based on a widely held 
misconception of what constitutes the maritime boundary of Queensland. 
O'Connell, op. cit., footnote 101 (at 187). It is admitted, however, that British 
ships and nationals operating on the high seas were regulated and that the 
Australian Navy had controlled the pearling activities of Dutch fishermen 
outside territorial limits. (Ibid.) See Goldie, 1 Sydney Law Review 95 (1953). 

106 Crocker, op. cit., footnote 52 (at 554) ; Jessup, op. cit., footnote 97 (at 13) ; 
Fulton, op. cit., footnote 52 (at 619-621 ) . 

107 1 Gidel, Le Droit International Public De La Mer, 489-491 (1932) . 



32 

existing technology and consonant with his needs — with the exploita- 
tion and control of some of the resources of the sea bed, both within 
and without territorial waters. Further, it has been our purpose to 
emphasize the fact that historically states have generally recognized 
the priority of the coastal state to exclusive rights over the sedentary 
fisheries resources of the sea bed beyond the limit of territorial waters, 
particularly where there has been effective and continued use. 108 Con- 
tinued recognition of this priority of the coastal state to the sedentary 
fish on the continental shelf is articulated in the Geneva Convention 
on the Continental Shelf. 109 

In contrast to the claims of states to the sea bed resources of the 
continental shelves which go back severah centuries, claims by states 
to the subsoil resources of the continental shelves are of fairly recent 
origin. The first such claim was made only a century ago. On 2 Au- 
gust 1858, Royal Assent was given to an act in England called the 
Cornwall Submarine Mines Act, which declared that all mines and 
minerals below low water mark under the open sea, adjacent to, but 
not being part of the County of Cornwall, were, as between the 
Queen in right of Her Crown and the Duke of Cornwall, vested in 
the Queen "as part of the soil and territorial possessions of the 
Crown." 110 

This Act was the outgrowth of a dispute between the Crown and 
the Duchy of Cornwall as to the ownership of minerals derived from 
the mines beneath the water on the coast of Cornwall. The dispute, 
which was finally settled by arbitration in the case of Rex v. Keyn, 111 



108 Fulton, op cit., footnote 52 (at 697) : "They (sedentary fisheries) may be 
very valuable, are generally restricted in extent, and are admittedly capable of 
being exhausted or destroyed . . . and international law also recognizes in 
certain cases a claim to such fisheries when they extend along the soil under the 
sea beyond the ordinary territorial limit." Also see Hurst, op. cit., footnote 97 
(at 40-41) : "The pearl and ehank fisheries in the Gulf of Manaar were claimed 
from early times by the successive Portuguese, Dutch and British masters of 
the neighbouring territory, and there can be little doubt but that a good title 
to the ownership of these beds can be made out, based on long-continued 
occupation." 

109 U.N. Doc. A/CONF. 13/L. 55, Art. 2(4) (1958). Art. 2(4) provides: "The 
natural resources referred to in these articles consist of the mineral and other 
nonliving resources of the sea-bed and subsoil together with living organisms 
belonging to sedentary species, that is to say, organisms which, at the harvest- 
able stage, either are immobile on or under the sea-bed or are unable to move 
except in constant physical contact with the sea-bed or the subsoil." 

110 The Cornwall Submarine Mine Act (1858) 21 and 22 Victoria Cap. CIX. 
Also see Norfolk Estuary Act (1846) and Lincoln Estuary Act (1851). 

111 L.R. 2 Exch. Div. 155-157, 199-201. 



33 

culminated in a law which gave effect to the arbitral award. 112 Since 
there is no indication in the Act of the outward limits of the mines 
below low water mark, one may infer that they could extend as far 
into the subsoil of the high seas as technology would permit. 

Other underseas mines, principally coal, which represented 19th 
century claims by states to subsoil resources of the continental shelves, 
although often not extending beyond the limit of territorial waters, 
were those of Australia, Canada, Chile and Japan, as well as many 
others in England besides the Cornwall mines. 113 These claims were 
based upon the recognized right of a coastal state to occupy the sub- 
soil under the high seas by the extension of mining installations whose 
entrance was located on the coastal state or in the territorial waters 
thereof. 114 

Were these 19th century claims to the submarine subsoil resources, 
and the earlier claims of states to resources of the sea bed (i.e., seden- 
tary fisheries), precursors of the present day continental shelf proc- 
lamations? It is submitted that they were, 115 despite obvious dif- 
ferences between the early claims to the resources of the sea bed and 
subsoil and those of the mid-twentieth century. These differences 
may be summarized briefly. 

(a) Differences in terminology. The 19th century and anteced- 



112 The arbitrator's award gives no reason for deciding that the minerals 
obtained from workings below low water mark belong to the Crown. The award 
merely says that they were vested in Her Majesty in right of Her Crown. When 
the Bill was prepared the draftsman added the words that these minerals were 
vested in Her Majesty in right of her Crown, "as part of the soil and territorial 
possessions of the Crown." Hurst suggests that these words may have been 
added by inadvertence or, what is more likely, that "the draftsman considered 
that the addition represented a necessary element in Sir John Patteson's award." 
Hurst, op. cit., footnote 97 (at 34) . 

113 Gidel, op. cit., footnote 107 (at 510) . Also see Brief for Texas, United States 
v. Texas, 339 U.S. 707 (1950). Opposite p. 5 is a drawing of a cross-section of 
the submarine coal mine of Lota, Chile, showing a mine extending four miles 
from shore under the Pacific Ocean. 

114 U.N. Doc. A/CN. 4/17, 33 ; in addition to claiming the mineral resources of 
the continental shelf during the 19th Century, France and England have from 
time to time considered building a tunnel under the high seas. "Report of the 
Commissioners for the Channel Tunnel and Railway" (1876) (H.M. Stat. Office), 
C. 1576. However, since the Channel Tunnel proposal was never formalized 
into a treaty, a proclamation, or legislation by either France or Great Britain, 
it is probably more accurate to say that specific claims by coastal states to the 
subsoil of their continental shelves during the 19th century were limited to 
underseas mines. 

us ( j,j ie p ress re i ease which accompanied the Truman Proclamation of 1945 on 
the continental shelf (Presidential Proclamation No. 2667, 28 Sept. 1945, 59 
Stat. 884) made specific reference to the submarine ore mines of England, Chile 
and other countries. 



34 

ent claims did not use the term "continental shelf" because it had 
not yet been invented. By contrast, the 20th century claims generally 
use the term "continental shelf," although some have not done so. 

(b) Differences in interference with freedom of the seas. The 
19th century claims, and earlier ones, to the resources of the sea bed 
and the subsoil, generally speaking, did not interfere with the freedom 
of the seas because the exploitation methods used involved no installa- 
tions in the high seas. Sedentary fisheries were harvested by ships 
and minerals were exploited via tunnels originating on the land-mass. 
Of course, laws such as the British Colonial Act of 1811, referred to 
earlier, did prevent other States from harvesting sedentary fisheries 
and excluded their ships from the pearl banks. 

By contrast, however, the exploitation of the continental shelves 
today, mostly for oil, often requires the building of installations 
attached permanently to the sea bed and the subsoil of the shelf 
which project above the surface of the high seas and of necessity 
involve some interference with the unfettered use of the seas by 
other states for navigation, fishing, cable and pipeline laying, scien- 
tific research and other purposes. Because of this possible interfer- 
ence by the coastal state through its exploitation of the continental 
shelf, with the free use of the seas by other states, the International 
Law Commission's draft articles and the Geneva Convention on the 
Continental Shelf contain provisions against such interference if it is 
unjus tiflah le. 116 

(c) Differences in extent of claims. The claims were modest a 
century or more ago because the knowledge of the sea bed resources 
and particularly of the subsoil resources was meager. Moreover, the 
technology available for their exploitation, as well as the needs of the 
states, were limited. By contrast, the claims in the mid-twentieth 
century are great because the needs are great, and our knowledge and 
technology are far advanced, even though still considerably short of 
what is required to exploit the continental shelves at their outer edges 
where the depth of the superjacent waters is 200 meters or more. 



117 



116 Geneva Convention on the Continental Shelf (U.N. Doc. A/CONF. 13/L. 55, 
Art. 3-5 (1958) ). Art. 4 provides that the exploitation of the continental shelf 
"must not result in any unjustifiable interference with navigation, fishing or the 
conservation of the living resources of the sea. . . ." (See Appendix D for 
full text.) 

117 Secretary of Interior Ickes said of the United States Proclamation of 1945 : 
"We have acquired jurisdiction over the Continental Shelf, which is about 
760,000 square miles of underwater land from which we may replenish some of 
our depleted mineral reserves . . . the Continental Shelf ranks with the lands 
which we acquired by the Louisiana Purchase, or by the opening of the West, 
or by the purchase of Alaska." Annual Report, Secretary of Interior 1945, 
pp. vi, ix-x. 



35 
2. Early 20th Century Claims to Continental Shelf Resources 

The first claim during the 20th century to continental shelf re- 
sources was that of the Portuguese Government in 1910 which issued 
a decree regulating fishing by steam vessels. 118 The year 1916 wit- 
nessed both an official claim by a state and an unofficial expression of 
interest in the resources of the continental shelf. However, the claim 
was to certain islands on the continental shelf, rather than to the 
sea bed or subsoil, and the expression of interest was in pelagic fish- 
eries in the superjacent waters, not unlike some of the recent claims 
of Latin American countries. 

The expression of interest was unofficial, the Spanish oceanographer 
Odon de Buen urging at the National Fishery Congress in Madrid in 
1916 that the territorial sea be extended to encompass the whole of 
the continental shelf in order to conserve the fisheries. 119 He viewed 
exclusive control (i.e., sovereignty) by the coastal state as the only 
effective means of conservation and protection of fisheries from de- 
structive, competitive exploitation. Some thirty years later the United 
States proclamation on fisheries stressed a similar need for coastal 
states to establish fisheries conservation zones, but not by extending the 
territorial sea. 120 

The official claim in 1916 was that of the Imperial Russian Govern- 
ment, which informed other governments that she considered the 
uninhabited islands north of Siberia as an integral part of Russia 
because they were located on and formed "a northward extension of 
the continental platform of Siberia." 121 This same claim was later 
reasserted by the Government of the U.S.S.R. in a special memoran- 
dum issued on 4 November 1924 to the governments of all states. 11 



122 



118 1 Laws and Regulations on the Regime of the High Seas, U.N. Doc. ST/ 
LEG/SER. B/l, 19 (1951). 

119 U.N. Doc. A/CN. 4/17, 34 (1950) . 

120 Presidential Proclamation No. 2668 (Sept. 28, 1945) 59 Stat. 885. The 
Geneva Convention on Fishing and Conservation of the Living Resources of the 
High Seas in Article 6 acknowledges that "A coastal State has a special interest 
in the maintenance of the productivity of the living resources in any area of 
the high seas adjacent to its territorial sea." However, nothing in the conven- 
tion suggests that a coastal State's special interest gives it "exclusive" fishing 
rights beyond the territorial sea. (U.N. Doc. A/CONF. 13/L. 54 and Add. 1 
(1958)). In fact, a provision (Art. 3) adopted by the First Committee (Ter- 
ritorial Sea and Contiguous Zone) which would have given each coastal state 
a 12-mile exclusive zone was defeated in plenary meetings and hence not 
included in the Convention on the Territorial Sea and Contiguous Zone. (3 
Official Records 258 and 2 Official Records 39). 

^Laktine, Rights Over the Arctic Regions 43-45 (1928). 
^egras, Soviet Documents on Foreign Policy 476 (1951). 



123 



36 

Does this Russian declaration of 1916, reasserted in 1924, represent 
an adumbration of the present continental shelf doctrine? It seems 
logical to argue that it was not for two reasons: First, the Russian 
claim was to islands (i.e., dry land mass) rather than to the resources 
of the sea bed and subsoil of the continental shelves. Secondly, the 
basis for the claim was not the continental shelf theory but the sector 
theory which was subsequently elaborated by a Soviet writer. 123 

Professor Francois, in his Report on the Law of the High Seas to 
the International Law Commission, 124 argues that the term "continental 
platform" as it appears in the Russian declaration of 1916 is not used 
in the same sense as it is today. Said he, 

"The rights claimed by the Soviet Union in polar waters 
should ... be considered in relation to the 'theory of sec- 
tors'. . . . The Soviet Government has not submitted any 
claims on the basis of the 'continental shelf theory nor has 
it replied to the claims of other States." 125 

That the claim of the Russian Government in 1916, repeated in 
1924, to islands on the northern "continental continuation" of Siberia 
is based upon the sector theory, rather than upon the continental 
shelf theory is further corroborated by the United Nations Secre- 
tariat's Memorandum on the Soviet Doctrine and Practice with 
Respect to the Regime of the High Seas (1950), which refers to an 
"extension of the 'sector' principle declared as governing Soviet 
claims to territory in the Arctic Ocean." 126 

The next event which might be considered as an expression of in- 
terest in the resources of the continental shelf occurred in 1918 and 
involved the State Department of the United States. To some extent 

123 Laktine, "Rights Over the Arctic," 24 A. J.I.L. 703, 708 ( 1930) . For a criticism 
of the sector theory see Franklin & McClintock, "The Territorial Claims of 
Nations in the Arctic : An Appraisal," 5 Oklahoma Law Review 37 (1952) . Under 
the sector theory the U.S.S.R. claimed a pie-shaped area northward to the North 
Pole from the outward limits of her territory. 

m U.N. Doc. A/CN. 4/17, 34 (1950) . 

125 1 oid. Although the Soviet Government has not officially claimed its con- 
tinental shelf resources, except by implication in signing the Convention on the 
Continental Shelf, nor protested the claims of other states to their continental 
shelves, Koretsky, a Soviet international lawyer and former member of the 
International Law Commission, wrote an unofficial, vitriolic denunciation of the 
Truman Proclamation, saying, among other things, "The USA wants to become 
'ruler of the seas' and 'king of the ocean floor' on its road toward world domina- 
tion." English translation of Koretsky's article appears in The Current Digest 
of the Soviet Press, Vol. II, No. 46, at 15 (Dec. 30, 1950). 

126 U.N. Doc. A/CN. 4/38, 5 (1950). Mouton disagrees with the view that the 
Russian claims to the islands were predicated upon the sector theory rather than 
upon the continental shelf theory, but his arguments are not convincing. Mouton, 
op. cit., footnote 63 (at 241). 



37 

it was an expression of disinterest by the United States in the con- 
tinental shelf. 

An American citizen, believing that oil lay in the subsoil of the 
Gulf of Mexico at a distance of about forty miles from land on a reef 
where the water was less than one hundred feet deep, wrote to the 
State Department to inquire whether it would be possible to acquire 
property or leasehold rights to the particular tract of ocean bottom 
in order to be protected in an effort to obtain oil. The American sug- 
gested that an artificial island might be erected and he inquired 
whether such an island could be brought under the jurisdiction of 
the United States. 127 

The State Department informed the American that "the United 
States has no jurisdiction over the ocean bottom of the Gulf of Mexico 
beyond the territorial waters adjacent to the coast." 128 However, 
although the above language did not indicate much interest, the rest 
of the letter suggested that the United States did have a veiled interest 
in such resources and possibly "would assume some sort of control over 
the island" if one were built by the United States citizen. 129 

The year 1935 saw another expression of the American attitude 
toward the continental shelf. In the face of the Japanese threat to 
engage in salmon fishing off Alaska, the Copeland Bill (S. 3744) was 
passed by the Senate, which purported to extend the jurisdiction of 
the United States to 

". . . all the waters and submerged land adjacent to the coast 
of Alaska . . . and lying within the limits of the continental 
shelf having a depth of water of 100 fathoms, more or 
less." 130 

Although the Copeland Bill went no further than the Senate, it 
represents a precursor of the Truman Proclamation of 1945 regarding 
fisheries and may have influenced to some extent the formulation of 
the present continental shelf doctrine. 

3. Mid-Twentieth Century Claims to Continental Shelf Resources 

a. United Kingdom — Venezuela Treaty of 1942 

The first modern-day claim by states to the resources both of the 
sea bed and subsoil of the continental shelf as de fined in the Geneva 
Convention was the treaty between the United Kingdom and Vene- 
zuela of -26 February 1942, relating to the submarine areas of the 



127 II Hackworth, Digest of International Law 679-80 (1941). 

128 Ibid, at 680. 

no Ibid. 

130 Leonard, International Regulation of Fisheries 134 .(1944). 



38 

Gulf of Paria located between Venezuela and the Island of Trinidad. 131 

This treaty foreshadowed the Truman Proclamation of 1945, and 
many of the other decrees and proclamations which followed, in that 
it contained no claim to "sovereignty" over the submarine areas of the 
gulf, although it used language which, like the Truman Proclamation, 
was equivalent to a declaration of sovereignty. 132 Similarly, the 
treaty foreshadowed many of the subsequent decrees and proclama- 
tions in recognizing that the exploitation of the submarine areas 
should not affect the freedom of the superjacent high seas. 

b. The Truman Proclamation of 1945 

Notwithstanding the importance of the United Kingdom- Vene- 
zuela treaty, the real beginning of the continental shelf doctrine is 
the Truman Proclamation of 1945. 133 Most of the subsequent claims 
by states to their continental shelf resources refer to the Truman 
Proclamation, either directly or indirectly, and any expansion of the 
continental shelf concept must be judged in the light of this original 
proclamation. 

The Truman Proclamation was a formidable document. It laid 
claim to a greater submarine area than any other claim in history 
and one which, in view of the advanced state of technology in the 
United States for the recovery of oil from underseas areas, gives some 
prospect of extensive realization of these important resources. More- 
over, the proclamation is important because it represented the first 
expression of a philosophy in regard to the continental shelf, abbrevi- 
ated and incomplete though that philosophy was. 

The proclamation asserts in the first three of the four introductory 
recitals the raison d'etre justifying the exclusive claim by a coastal 
state to its continental shelf. The first three recitals declare: (1) the 
awareness of a long-range, worldwide need for new sources of petro- 
leum and other minerals; (2) the existence of these needed resources 
under the continental shelf and the technological feasibility of their 
exploitation either now or in the near future; and (3) the need for 
some recognized jurisdiction over these resources in the interest of 
their (a) conservation and (b) prudent utilization. 134 

Discussions of the Truman Proclamation and the many other 
claims which followed shortly thereafter, are often confused and 
confusing because they fail to differentiate clearly between statements 
in the claims of conditions as distinguished from preferences (i.e., 

131 British Treaty Series, No. 10 (1942). Also see Vallat, "The Continental 
Shelf," 23 B.Y.I.L. 333 (1946) . 

132 IUd. 

133 Presidential Proclamation No. 2667, 28 Sept. 1945, 59 Stat . 884, 10 Federal 
Register 12303. 

134 IUd. 



39 

goals of the coastal state and the world community). Moreover, the 
discussions often blur the lines between doctrine and practice and pay 
too little attention to alternatives, both in goals and in the methods 
for achieving the goals. The analysis here will attempt to differenti- 
ate these several facets of the total problem. 

The first recital of the Truman Proclamation is in terms of a 
condition viewed from the world community perspective (i.e., the 
"world-wide need for new resources"). Nothing is said in the first 
recital about the need of the United States or any other coastal state 
for these new resources, although such need is clearly implied. Nor 
is the need expressed in the proclamation in terms of the required 
resources of the free world bloc vis-a-vis the Soviet bloc, largely, one 
may assume, because at the time (September 1945) the cold war had 
not set in nor had the cleavage of the bipolar world become so 
apparent. 

The second recital, like the first, was also stated in terms of 
conditions (i.e., the existence of needed resources and the technology 
to exploit them). By implication, at least, these conditions were 
stated in terms of the world perspective rather than from the perspec- 
tive of a single state. There was no suggestion that only the con- 
tinental shelves of the United States contained petroleum and other 
needed minerals, nor was there a suggestion that only the United 
States had the necessary technology for their exploitation, despite the 
known leadership of the United States technology in this field. 

The third recital, unlike the first two, expressed a preference 
for values in terms of the previously stated conditions. It postulated 
a preference for "recognized jurisdiction over these resources" mean- 
ing an ultimate recognition by the world community of the right of 
the coastal state to the jurisdiction over continental shelf resources, 
their extent and limits nowhere denned, because of the stated prefer- 
ences for order in conservation and prudent utilization. 

The fourth recital in the Truman Proclamation is of sufficient im- 
portance to warrant stating it in its entirety : 

"Whereas it is the view of the Government of the United 
States of America that the exercise of jurisdiction over the 
natural resources of the subsoil and sea bed of the Continental 
Shelf by the contiguous nation is reasonable and just, (1) 
since the effectiveness of measures to utilize or conserve these 
resources would be contingent upon cooperation and protec- 
tion from the shore, (2) since the Continental Shelf may be 
regarded as an extension of the land mass of the coastal nation 
and thus naturally appurtenant to it, (3) since these re- 
sources frequently form a seaward extension of a pool or 



40 

deposit lying within the territory, and (4) since self -protec- 
tion compels the coastal nation to keep close watch over 
activities off its shores which are of the nature necessary for 
the utilization of these resources ; . . . ." 135 (Emphasis and 
numbers added.) 

It will be noted that this fourth recital begins by saying that it 
is the United States view that the exercise of jurisdiction is reasonable 
and just. Reasonableness and justice are recognized general norms in 
international law. Their invocation in support of the United States 
claim is justified. However, it is surprising that the United States 
did not rely upon one or more 'of the sources of international law as 
set forth in Article 38 of the Statute of the International Court of 
Justice, in addition to the general norms of reasonableness and justice. 
International custom could have been invoked in view of the long 
history of claims by coastal states to sea bed and subsoil resources as 
summarized above. Moreover, although it was recent, the Anglo- 
Venezuelan treaty of 1942 might have been referred to. Instead, the 
United States proclamation argued the present reasonableness and 
justice of coastal jurisdiction largely in terms of physical, technologi- 
cal, and political conditions, as well as in terms of state preferences 
for wealth, power, and security, even though the terms wealth, power 
and security were not used to describe the values at stake. 

The United States proclamation of 1945 says that the exercise 
by the coastal state of jurisdiction over the continental shelf "is rea- 
sonable and just," which suggests a statement of what the law is, 
thereby justifying the assertion of the claims to the resources. How- 
ever, the failure to invoke any of the customary sources of international 
law in support of the "is" leads to the conclusion that the statement 
really amounts to either (1) an expression of what the law in regard 
to the continental shelf would be if other states followed the lead of 
the United States and thereby developed a customary international 
law of the continental shelf, or (2) an expression in 1945 of what the 
law ought to be, after considering all relevant policies and variables 
in context and after projecting within the limits of human errors of 
foreseeability. 

It is not suggested that the decision-makers who drafted the 
United States proclamation should have invoked some of the recog- 
nized sources of international law instead of promulgating the reasons 
why the coastal state should have control and jurisdiction (or "sover- 
eignty" as the less timid have called it) over its continental shelf, but 
rather these sources should have been delineated in the proclamation 



Ibid, 



41 

in addition to the description of the physical, technological and power 
conditions in the world and the statement of preferences. 

If the United States proclamation had been predicated essentially 
upon established sources of international law, particularly upon 
"customary international law" which has long recognized the right 
of coastal states to exercise sovereignty over submarine subsoil re- 
sources beyond coastal waters to the extent of existing technology, 
and over sea bed resources (sedentary fisheries) under a custom going 
back many centuries, several desirable results might have ensued 
therefrom : ( 1 ) some of the claims promulgated after the United 
States proclamation might have been both clearer and more moderate ; 
(2) much of the confusion which has attended many of the delibera- 
tions of the International Law Commission and other international 
legal bodies might have been avoided; and (3) the basis for a great 
deal of the criticism of the United States proclamation and of the 
whole concept of the continental shelf might have been removed in 
large part. 

This is not to suggest that states cannot justifiably take action for 
the purpose of securing for themselves values which they desire unless 
they invoke some existing doctrine or practice to justify their action. 
The need for action to secure values must never be shackled and immo- 
bilized merely for want of existing legal prescriptions. A decision- 
maker is not to be confined, in the determination of the lawfulness of 
his action, or proposed course of action, to the precedents of prior 
international conventions or prior international custom, but "may 
draw creatively upon a great variety of principles, precedents, analo- 
gies, and considerations of fairness." 136 But when, as here, prior 
doctrine and practice of states with respect to the exploration and 
exploitation of the resources of submarine areas were at hand, the 
United States proclamation should have invoked them. 

Nor is it being suggested that the decision-makers who drafted 
the United States proclamation were incorrect or unwarranted in their 
indication of preferences, and in their recital of physical, technological 
and political conditions to justify the reasonableness of a coastal 



13e McDougal, "The Hydrogen Bomb Tests and the International Law of the 
Sea," 49 A.J.I.L. 356, 359. McDougal suggests that the Anglo-Norwegian Fish- 
eries case is an excellent example of the process by which external decision- 
makers appraise unilateral claims. In this case Norway asserted claims which 
could not be justified by reference either (1) to explicit agreement, or (2) to 
widely accepted custom, and which had been protested by other states. But, 
by drawing upon all relevant sources of policy and a great variety of considera- 
tions in the context of the case, the Court concluded that Norway's claims were 
lawful. (Judgment of 18 December 1951. [1951] I.C.J. Rep. 116.) Also see 
Waldock, "The Anglo-Norwegian Fisheries Case," 28 B.Y.I.L. 114 (1951). 

607631—61 4 



4:2 

state's exercise of jurisdiction over the resources of the sea bed and 
subsoil of its continental shelf. On the contrary, the assertions were 
quite accurate, as the following analysis of the expressed language in 
the fourth recital of the Truman Proclamation demonstrates. 

(1) Assertions: 

(a) "The effectiveness of measures to utilize or conserve 
these resources would be contingent upon cooperation and protection 
from the shore." This statement of a condition regarding technology 
and exploitability of submarine resources is a recognition of the fact 
that technological and economic considerations make impracticable the 
exploitation of the resources without considerable cooperation from 
the shore. Shore-based operations for the building of offshore in- 
stallations and maintaining and supplying such installations, as well 
as shore-based pumping stations to service pipelines from the offshore 
drilling platforms, would be necessary. While, admittedly, it would 
be possible for an overseas state to build and service high seas drilling 
platforms, it would be far less practicable than for the coastal state 
to do so. 

From the standpoint of legal theory and prior doctrine this 
part of the proclamation impliedly, though not expressly, suggests 
that proximity of the coastal state to the continental shelf is more 
conducive to "effective occupation." 

(b) "The Continental Shelf may be regarded as an extension 
of the land mass of the coastal nation and thus naturally appurtenant 
to it." This statement of conditions as to the physical universe is 
geologically correct. It is unfortunate that the International Law 
Commission did not include this concept of the "extension of the land 
mass" in its definition of the continental shelf in 1951, 1953 and 1956. 137 
However, in fairness to the Commission, in justifying the coastal 
state's claim to the continental shelf the comments following the final 
draft articles did recognize the oneness of the land mass and the con- 
tinental shelf, saying : 

"Neither is it possible to disregard the phenomenon of ge- 
ography, whether that phenomenon is described as propin- 
quity, contiguity, geographical continuity, appurtenance or 
identity of the submarine areas in question with the non-sub- 
merged contiguous land." 138 

(c) "These resources frequently form a seaward extension 
of a pool or deposit lying within the territory." Again, the statement 



137 U.N. Doc. A/1858, 17 (1951) ; U.N. Doc. A/2456, 12 (1953) ; U.N. Doc. A/3159, 
41(1956). 

138 U.N. Doc. A/3159, 43 (1956) . 



43 

of conditions of the physical universe is geologically correct. A strong 
reason for granting the coastal state exclusive rights to the resources 
of its continental shelves is to forestall "whipstocking" 139 of domestic 
oil pools beyond territorial waters by overseas states. Of course, the 
problem of "whipstocking" must still be solved in those areas where 
one or more nations have common continental shelves. 

(d) "Self -protection compels the coastal nation to keep close 
watch over activities off its shores which ,are of the nature necessary 
for the utilization of these resources." Implicit in this statement is 
an awareness of the world power process and the inherent threat to 
peace and freedom in the world community. To this extent it is a 
statement of conditions which justify, at least as one alternative 
method, a coastal state's control and jurisdiction over its continental 
shelf and the resources thereof. 

That the International Law Commission was also aware of 
the same conditions of insecurity in the world and the need arising 
out of those conditions for the coastal state to exclude foreign states 
from building installations on the coastal state's continental shelf is 
indicated in the comments following the 1951 provisional draft 
articles : 

"It would seem to serve no purpose to refer to the sea bed 
and subsoil of the submarine areas in question as res nullius 
capable of being acquired by the first occupier. That concep- 
tion might lead to chaos. . . ." 140 

But the fourth recital of the Truman Proclamation which 
refers to the compelling need for self -protection, is more than an 
implied statement of world conditions. It is also an indication of 
a coastal state's demand for security, and an implied reference to a 
recognized principle of international law which confers upon each 
state the inherent right to take whatever unilateral (or collective) 
measures are necessary to provide for its security. 141 To this extent 

139 "Whipstocking" is a term used in petroleum engineering to describe direc- 
tional drilling. A long wedge is placed in a well to deflect the drill at an angle. 
By this process it is possible for a drilling rig to be located on one property and 
the well to be bottomed on an adjoining property. However, there are practical 
limits to direction drilling. At the present time the greatest maximum hori- 
zontal distance that can be attained is 7,000 to 8,000 feet, with the possibility of 
a 10,000 to 12,000 feet horizontal distance being attained in the future. See 
U.N. Prep. Doc. No. 20 at 22 (1958). 

140 U.N. Doc. A/1858, comment 4 at 18 (1951). Also see U.N. Doc. A/2456, par. 
73 at 14 (1953) ; U.N. Doc. A/3159, 43 (8) (1956). 

141 Article 51 of the United Nations Charter provides : "Nothing in the present 
Charter shall impair the inherent right of individual or collective self-defense if 
an armed attack occurs against a Member of the United Nations, until the Security 
Council has taken the measures necessary to maintain international peace and 
security." Also see Bowett, Self -Defense in International La.w 3 (1958). 



44 

the Truman Proclamation does refer, though not explicity, to the 
right of self-defense. 

It should be noted that the proclamation makes no claim to 
an extension of territorial waters. However, it does purport to extend 
maritime jurisdiction by claiming the right to use the high seas to 
the extent necessary, with due deference to the long-established doc- 
trine of freedom of the seas, for the purpose of exploring and exploit- 
ing submarine resources of the continental shelf. It is clear that, 
even in the absence of such an extension of jurisdiction and control 
over its continental shelf, the United States, as well as other coastal 
states, would not tolerate mineral exploitation or the building of 
"radar islands" or guided missile launching platforms on its shelves 
immediately beyond the limit of territorial waters. Both security 
and economic considerations render such foreign exploitation of a 
coastal state's continental shelf intolerable. 

(2) Jurisdiction and control versus sovereignty 

The operative part of the Truman Proclamation states that 
the government of the United States regards the natural resources of 
the subsoil and the sea bed of the continental shelf beneath the high 
seas but contiguous to the coasts of the United States as appertaining 
to the United States, subject to its jurisdiction and control. 142. 

It is appropriate at this point to comment upon the various 
views which have been expressed among legal scholars as to whether 
the United States' assertion of "jurisdiction and control" is the same 
as "sovereignty." 143 

The use of the carefully selected terminology, "jurisdiction 
and control," may have been motivated in part by a circumspect desire 
to avoid any possible accusation by unfriendly powers that the United 
States was trying to become a submarine imperialist, even while casting 
aside the last mantle of imperialism by freeing the Philippines. 144 
The efforts to avoid such an accusation were generally successful, but 
not entirely so. 145 



142 Presidential Proclamation No. 2667, 28 Sept. 1945, 59 Stat. 884, 10 Federal 
Register 12303. 

143 Committee IV of the Geneva Conference (1958) also discussed at some length 
the appropriate language to use in defining the rights of the coastal state over 
its continental shelf, finally eschewing the term "sovereignty" lest it connote 
rights over the superjacent waters in contravention of the doctrine of mare 
liberum, and approving the term "sovereign rights." U.N. Doc. A/CONF. 13/38 
(1958). Also see Whiteman, "Conference on the Law of the Sea : Convention on 
the Continental Shelf," 52 A.J.I.L. 629, 636 (1958). 

144 Grunder and Livezey, "The Philippines and the United States" (1951), esp. 
Ch. XV. The Philippines were granted independence 4 July 1946. 
145 See comments by Koretsky, op. cit., footnote 125. 



45 

Moreover, it seems reasonable to assume that those who 
drafted the Truman Proclamation were desirous of claiming some- 
thing less than full sovereignty and therefore used not only the terms 
"jurisdiction and control" but also claimed only the "natural re- 
sources" of the continental shelf rather than the sea bed and subsoil 
of the continental shelf itself. The State Department expressed the 
view that the Truman Proclamation did not extend United States 
sovereignty beyond territorial waters, saying : 

"The territorial limits of the United States are precisely 
the same as before September 28, 1945, namely, three marine 
miles seaward from the coast. ..." 146 

The United Nations Secretariat took a similar view in its 
1950 memorandum on the Regime of the High Seas ; saying that "It 
would appear wrong to identify with sovereign rights the rights to 
the United States continental shelf claimed under the President's 
Proclamation." 147 

Several legal scholars were of the same opinion. Young 
wrote that "President Truman's proclamation of 1945 made no claim 
on behalf of the United States to 'sovereignty,' 'title,' or 'ownership' 
of the continental shelf." 148 

Sir Cecil Hurst first wrote that "the text of the (Truman) 
proclamation does not purport to effect any extension of the 
sovereignty of the United States." 149 However, subsequently in the 
same article Hurst admitted that the distinction between the juris- 
diction and the exclusive control which are claimed and sovereignty 
is so small as to be little more than a question of name, saying : 

"One cannot read this Proclamation without feeling that 
within the area of its Continental Shelf, the United States 
is claiming rights which are as large as sovereignty ... if 
tHe rights claimed over the Continental Shelf and its 



146 13 Department of State Bulletin 484 (1945). Also see Selak, "Recent 
Developments in High Seas Fisheries Jurisdiction Under the President's 
Proclamation of 1945," 44 A.J.I.L. 680 (1950). 

147 U.N. Doc. A/CN. 4/32, 81 (1950). 

148 Young, "Recent Developments with Respect to the Continental Shelf," 
42 A.J.I.L. 849, 850 (1948). Young related the language of the Truman Proc- 
lamation to that of the century-old Guano Islands Act of 1856 which provided 
that under certain specified conditions Guano Islands may "at the discretion 
of the President of the United States be considered as appertaining to the 
United States." (11 Stat. 119.) 

149 Hurst, "The Continental Shelf," 34 Grotius Society Transactions 149 (1949). 
Also see Report of Conference International Law Association, 133 Copenhagen, 
(1950) in which the language "control and jurisdiction" was proposed instead 
of "sovereignty." 



46 

resources were called sovereignty, they would be no more 
extensive than what are claimed in the Proclamation." 150 

It is submitted that the last statements of Sir Cecil Hurst 
are correct, namely, that there is no essential difference between sov- 
ereignty over the continental shelf and the language "jurisdiction and 
control" over the "natural resources" as used in the Truman Procla- 
mation. Or, to state it another way, it is distinction without a 
difference. 

Waldock, another distinguished English writer, agreed with 
Hurst's later expressions, saying that "the Proclamation looks very 
like an act of appropriation." 151 Similarly, Judge Lauterpacht 
agreed that the United States Proclamation was an assumption of 
sovereignty over the continental shelf, saying : 

"... while for reasons of its constitutional law and of 
attachment to consistency in its diplomatic practice the 
United States may have resorted to a terminology intended » 
to dispel the appearance of assumption of sovereignty, it 
used words and assumed powers which in fact can have no 
other result." 152 

Brierly was of the opinion, also, that "jurisdiction and con- 
trol" was equivalent to sovereignty. 153 Vallat concurred, saying that 
" 'jurisdiction and control' are tantamount to sovereignty." 154 Mou- 
ton also agreed, although he expressed some reservation as to the full 
equivalency of "jurisdiction and control" and "sovereignty," saying, 
"It seems that there is strong evidence that control and jurisdiction 
is the same right, or nearly the same right, as sovereignty." 155 

Although it seems clear that the words of the Truman Proc- 
lamation, "jurisdiction and control" over the "natural resources" of 
the continental shelf are the equivalent, or nearly the equivalent of a 
claim of sovereignty, the conflict of views is worthy of some elabora- 
tion for the following reasons : First, many of the subsequent proc- 
lamations of states actually used the term "sovereignty" on the theory 
that no more was being claimed than had been claimed by the United 
States in claiming "jurisdiction and control." 



156 



150 Hurst, op. cit., footnote 149 (at 160). 

151 Waldock, "The Legal Basis of Claims to the Continental Shelf," 36 Grotius 
Society Transactions 128 (1950). 

152 Lauterpacht, op. cit., footnote 88 (at 389). 
M3 U.N. Doc. A/CN. 4/SR. 68, 8 (1950) . 

154 Vallat, "The Continental Shelf," 23 B.Y.I.L. 336 (1946) . 

155 Mouton, op. cit., footnote 63 (at 278) . 

156 U.S. Naval War College International Law Documents, 1948-49, 187 (1950). 
The Argentine Republic Presidential Decree of 11 October 1946 said that the 
United States had issued a declaration asserting sovereignty over the peripheral 



47 

Second, several of the states which did not use the term 
"sovereignty" did use alternative language which was as strong, if 
not stronger, than the language used by the United States (e.g., the 
sea bed and subsoil of the continental shelf, or the resources thereof, 
were said to "belong to" 157 or are "integrated into the," 158 or shall 
"be included in the territories of. . . ." 159 

Third, the International Law Commission spent considerable 
time debating the terminology to be used and ultimately changed its 
original position. In the provisional draft articles of 1951 the Com- 
mission used the terminology "control and jurisdiction," 1G0 whereas 
in the revised draft articles of 1953, after having received the criti- 
cisms of many states, in addition to the criticisms of some members 
of the Commission, those words were changed to the less-timid, though 
no more inclusive, term, "sovereign rights." 161 

After much debate, the term "sovereign rights" was also used 
in the Geneva Convention as a sort of compromise between "control 
and jurisdiction" and "sovereignty." 162 It is difficult to see how the 
term "sovereign rights" can mean anything less than "sovereignty," 
particularly when the Convention provides that the "coastal State 
exercises over the continental shelf exclusive rights for the purpose 
of exploring it and exploiting its natural resources." 163 

Basically the problem that could not be resolved in the 
minds of those who objected to the use of the term "sovereignty" 
was that historically and conceptually "sovereignty" was vertical 
rather than horizontal. Secondly, some international lawyers and 
government officials have too long thought of international law as a 
body of static, rigid rules of precise and unchangeable meaning, un- 
related to policies as factors and instruments in the guiding and 
shaping of decisions for the maximization of values. 164 This pre- 

epicoiitinental seas and continental shelves. This statement is clearly in error, 
as a careful reading of the Truman Proclamation will show. Yet the Decree 
indicates that Argentina was considering the United States claim to "jurisdic- 
tion and control" as being the equivalent to a claim of "sovereignty." 

157 MacChesney, op. cit., footnote 71 (at 487) . 

158 Ibid, at 444. 

159 Ibid, at 486. Also see Bahrain Proclamation which uses the language "sub- 
ject to the sphere of its absolute jurisdiction and its absolute authority." 1 Laws 
and Regulations on the Regime of the High Seas. U.N. Doc. ST/LEG/SER.B/1, 
25 (1951). 

160 U.N. Doc. A/1858, Art. 2, 18 (1951) . 

161 U.N. Doc. A/2456, Art. 2, 12 (1953) . 

162 U.N. Doc. A/CONF. 13/L. 55, Art. 2 (1958) . 

163 Ibid. 

164 For an elaboration of this idea see McDougal, "International Law, Power 
and Policy : A Contemporary Conception," 1 Recueil des Cours 137, 143-145 
(1953). 



48 

occupation with concepts and rules which were perhaps valid for the 
past but which are no longer adequate for contemporary conditions, 
has given to the term "sovereignty" the connotation of (a) "vertical 
ownership," meaning that he who owned the land mass also owned 
to the center of the earth and to the sky, and (b) the connotation of 
"absoluteness" meaning that sovereignty is exclusive and complete, 
never partial or dual or subject to the slightest derogation. Unques- 
tionably this thinking resulted in the hesitancy of some states, includ- 
ing the United States, 165 to use the term "sovereignty" in claiming 
the continental shelf or the resources thereof. 

As previously indicated, although Hurst concluded that the 
words "jurisdiction and control" in the United States Proclamation 
were the same as "sovereignty," 166 he was troubled by the fact that a 
declaration of sovereignty over the continental shelf would create a 
line which made a "gigantic zigzag" and hence would conflict with 
the neat little notion that sovereignty was "vertical." He wrote : 

"... Hitherto it has, I believe, been generally assumed that 
the limit of a State's sovereignty is a vertical straight line 
stretching upwards and downwards ad infinitum from the 
starting point. Was the Continental Shelf policy intended 
to introduce a new system ? A system under which the limits 
of a State's sovereignty would be a line which made a gigantic 
zigzag. . . ." 167 

Of course, there is nothing sacred about the concept that 
sovereignty is "vertical"; it can be both vertical and horizontal, the 
same as it can be and often is dual, as well as singular. It can be 
exclusive as to the utilization of a resource (e.g., the exclusive right 
of a coastal state to fish in territorial waters or exploit its continental 
shelf), at the same time and yet subject to the overriding needs of 
the world community in that such sovereignty must accommodate 
itself to the inclusive uses demanded by other states, such as the right 
of innocent passage in territorial waters, and the right of navigation, 
fishing, scientific research, etc., in areas of the high seas occupied by 
continental shelf installations of the coastal state. In short, the idea 
of sovereignty demands respect but not reverence, deference but not 
deification. 

One of the more creative thinkers among international law- 
yers has suggested the idea of "horizontal" sovereignty, 168 and others 



165 Whiteman, op. cit., footnote 143 (at 629, 636) . 

166 Hurst, op. cit., footnote 149 (at 149) . 

167 IUd. 

168 U.N. Doc. A/CN. 4/SR. 199, 10, comments of Judge Lauterpacht then a mem- 
ber of the I.L.C. 



49 

subsequently have given support to the idea that the delimiting line 
of a state's sovereignty might "zigzag" a little. 169 

c. Claims of States Subsequent to the Truman Proclamation. 

Enough has been said of the Truman Proclamation to permit a 
comparative analysis of several of the representative types of claims 
by states to their continental shelves, and, often, to the fisheries re- 
sources of the superjacent waters. The discussion of many of these 
claims to the continental shelf will involve some overlap with a dis- 
cussion of state practice relative to territorial waters and the at- 
tempted extension thereof to distances up to 200 miles from shore. 

The United States claim opened the bidding on the continental 
shelf in 1945. Several of the states which have followed the United 
States lead have doubled and, in a few cases, re-doubled the original 
bid. Many subsequent claims, although they either expressly or im- 
pliedly refer to the Truman Proclamation as precedent, go far beyond 
its scope. 

The Truman Proclamation on the continental shelf was, as we 
have seen, couched in terms of "jurisdiction and control," and avoided 
a claim of "sovereignty" 170 or "title." Moreover, the companion fish- 
eries proclamation did not claim exclusive rights in the natural re- 
sources of the sea contiguous to the United States, nor did it refer 
either expressly or by implication to the United States continental 
shelf. 171 By contrast several of the subsequent claims of other states 
asserted sovereignty not only over the continental shelf but also over 
the superjacent waters as well. 

In general the claims made subsequent to the Truman Proclama- 
tion on the continental shelf may be grouped under three classifica- 
tions: (1) those with a precise depth limit; (2) those with a precise 
width limit, regardless of depth; and (3) those effecting an indeter- 
minate extension of sovereignty, the extent of the claim not being 
precise either as to width or depth of superjacent waters. Representa- 
tive claims under each classification will be analyzed. 

(1) Claims to continental shelf with a precise depth limit of 
superjacent waters. A number of states, including Mexico, Nica- 
ragua, Ecuador, and Pakistan, have asserted this type of claim, a few 
of which will be discussed. 

Scarcely a month after the Truman Proclamation, the Presi- 
dent of Mexico issued a declaration asserting Mexican control over 
the contiguous continental shelf, describing the shelf as bounded "by 

169 Mouton, op. cit., footnote 63 (at 278) . 

170 Judge Lauterpacht contends that sovereignty is an "established term of a 
clarity transcending that of 'control and jurisdiction'." Lauterpacht, op. cit., 
footnote 88 (at 389, 392). His contention is debatable as to the clarity of the 
term. 

171 Presidential Proclamation No. 2668, 26 September 1945, 59 Stat. 885. 



50 

the 'isobath,' that is, the line joining points at the same depth (200 
metres)." 172 The Mexican claim says that "this shelf clearly forms 
an integral part of continental countries," and goes on to enumerate 
some of the resources contained in the shelf — "natural resources, 
liquid and gaseous minerals, phosphates, calcium, hydrocarbons, etc." 
of inestimable value "whose legal incorporation into the national prop- 
erty is urgent and cannot be delayed." 173 

Although not claiming control and jurisdiction over the pelagic 
fisheries off her coasts, Mexico did suggest that she was "taking steps 
to supervise, utilize and control the closed fishing zones necessary for 
the conservation of this source of wellbeing," declaring that the pro- 
tection should consist of the extension of control and supervision 
irrespective of the distance from the coast. 174 

Thus, while the Mexican claim to the continental shelf was 
expressed in terms of the depth of the superjacent waters (i.e., 200 
meters) there was no comparable limitation fixed for the width of 
anticipated pelagic fisheries zones of protection, nor did Mexico limit 
such zones to the superjacent waters above her continental shelves. 
The Mexican claim in regard to her establishment of closed fishing 
zones was tempered by a subsequent statement recognizing the "law- 
ful rights of third parties based on reciprocity" and indicating that 
the rights of free navigation on the high seas were not affected. 

In February 1951, Ecuador issued a decree which was labeled 
as relating to territorial waters, but which proclaimed sovereignty 
over the continental shelf with a precise depth limit of 200 meters of 
superjacent waters marking the outer edge. The decree also estab- 
lished a fisheries protection zone in the high seas corresponding to 
this shelf (i.e., the protection zone was related to the shelf as 
defined). 175 

In addition, the decree specified a territorial sea of 12 nautical 
miles but the inference to be drawn from the total document was 
that Ecuador purported to extend her territorial sea to include all 
waters covering the continental shelf. As was to be expected, both 
the United States and the United Kingdom filed protests. 1 ' 



L76 



172 U.S. Naval War College International Law Documents, op. cit., footnote 156 
(at 185). 

173 Ibid. 

174 Ibid, at 186. 

175 MacChesney, op. cit., footnote 71 (at 456). 

176 (j^ united States protest of April 7, 1951, was similar to those filed with 
Chile, Peru and other Latin American countries. I.C.J. Pleadings, 1951, U.E.- 
Norway, IV, at 603. The British protest of September 1951, invoked the 1951 
provisional draft articles of the International Law Commission which provide 
that "the exercise by a coastal State of control and jurisdiction over the con- 
tinental shelf does not affect the legal status of the superjacent waters as high 
seas." Mouton, op. cit., footnote 63 (at 93-94). 



51 

In August 1952 Ecuador made her claim to sovereignty over 
the adjacent maritime zone even more emphatic and precise — this 
time precise as to width rather than depth of the superjacent waters — 
by joining with Chile and Peru in signing the Declaration of San- 
tiago claiming 200 miles of high seas and pledging collaboration for 
the protection of marine resources in the area. 177 Chile and Peru 
had individually made such extensive claims in 1947. 178 United 
States efforts to conclude agreements with Chile, Ecuador and Peru 
to modify these 200-mile claims to sovereignty over the seas adjacent 
to their coasts have met with failure. 179 

(2) Claims with a precise width limit of superjacent waters. 
The second classification of claims is that which specifies a precise 
width limit of high seas without reference to the depth of the super- 
jacent waters over the continental shelf and, in many cases, even in 
the absence of a shelf in the geological sense. This type of claim has 
been asserted by a number of states, particularly the Latin American 
states of Chile, Peru, Costa Rica, El Salvador, and Honduras. Korea 
and Saudi Arabia have also asserted claims based upon a precise 
width of high seas. 

Typical are the claims of Chile and Peru which, as previously 
indicated, asserted their sovereignty over a belt of the high seas ex- 
tending 200 miles from their coasts. The Proclamation of Chile in 
1947 announced that the government 

"... proclaims and confirms its national sovereignty over all 
the continental shelf adjacent to the continental and island 
coasts of its national territory whatever may be their depth 
below the sea." 180 

The Chilean proclamation then claimed ". . . national sover- 
eignty over the seas adjacent to its coasts whatever may be 
their depths, and within those limits necessary in order to re- 
serve, protect, preserve and exploit the natural resources of 
whatever nature found on, within and below the said seas . . . 
at a distance of 200 nautical miles from the coasts of Chilean 
territory." 181 

A similar zone was also claimed on all sides of Chile's island 
possessions. 



177 Department of State Bulletin No. 860 (1955) . 

178 U.S. Naval War College International Law Documents, op. cit., footnote 
156 (at 188-192). 

178 "Santiago Negotiations on Fishery Conservation Problems Among Chile, 
Ecuador, Peru, and the United States, Sept. 14-Oct. 5, 1955." 33 Department 
of State Bulletin 1025 (1955) . 

180 1 U.N. Leg. Ser. 6 (1951) 

181 Ibid. 



Although the Chilean proc / I'ion repudiated any intent to 
affect "the legitimate rights of otl: :r ^: :ntes on a basis of reciprocity" 
and "the rights of free navigation on die high seas," it is clear that the 
claim to sovereignty over the high seas does constitute a complete 
and unjustified departure from international law. This departure 
was stressed by the United States Government in its note of 2 July 
1948, to Chile, protesting the extensive claims, saying: 

"In these respects, the United States Government notes 
in particular that (1) the Chilean Declaration confirms and 
proclaims the national sovereignty of Chile over the conti- 
nental shelf and over the seas adjacent to the coast of Chile 
outside the generally accepted limits of territorial waters, 
and (2) the Declaration fails, with respect to fishing, to 
accord appropriate and adequate recognition to the rights 
and interests of the United States in the high seas off the 
coast of Chile." 182 

The principal reason advanced by Chile for the departure in 
the proclamation from generally accepted principles of international 
law is geological, as she emphasized in her elaborate comments on 
the 1951 provisional draft articles of the International Law Com- 
mission. 183 The continental shelf, in the strict geological sense, is so 
narrow and precipitous off the Chilean coast that a claim based upon 
a depth limit of 200 meters would have given Chile little by way of 
new resources over what she could already claim in the submarine 
areas beneath a three-mile territorial sea. 184 

The Chilean proclamation, therefore, lays claim to resources 
of vast areas of submarine territory and high seas which in reality 
have no relation to the continental shelf in terms of the generally 
accepted geological concept of a 200-meter depth limit. The sub- 
marine territory claimed is not the continental shelf but the conti- 
nental slopes and deep ocean basins out to 200 miles from shore. In 
addition, Chile claims the fisheries above said slopes and deep ocean 
basins. Yet, her claim to the "continental shelf" is consistent with 
the depth-of-exploitability test in the Geneva Convention and will 
become meaningful when the world's technology permits the exploita- 
tion of resources from these and other continental slopes and deep 
ocean basins. 

In her comments to the International Law Commission on the 
1951 provisional draft articles, Chile said 



182 U.N. Doc. A/CN. 4/19, 114 (1950). 

183 U.N. Doc. A/2456, Annex II, 43-46 (1953). 

184 XLI #2 Geographical Review, 185-209 (1951). Also see Second Report by 
Mr. Francois to the I.L.C., U.N. Doc. A/CN. 4/61 (1953). 



53 

"... there should be nrmation of the right to estab- 

lish an exclusive huntin fishing zone 200 sea miles wide 

. . . based on the followi sons : (1) the special configura- 

tion of the submarine si , . ong the coasts of Chile; (2) the 
exploitation of the fisheries, which are of vital concern to 
Chile; (3) the inadequacy of three miles of territorial sea for 
protecting the fishing industry and preventing destruction of 
marine life; and (4) the improper jurisdiction exercised in 
the past and present by certain foreign vessels over Chilean 
fishermen, whose living comes mainly from the sea." 185 
Moreover, Chile also argued that since other Latin American 
countries had followed the Chilean lead, a new doctrine of "con- 
tinental seas or waters" (i.e., the right of each state unilaterally to 
determine the breadth of its territorial sea) had become part of inter- 
national law. 186 Finally, the Chilean proclamation defended the 200- 
mile claims in terms of the importance of fisheries to the economic life 
of the country, saying 

". . . in view of its topography and the narrowness of its 
boundaries, the life of the country is linked to the sea and to 
all present and future natural riches contained within it, more 
so than in the case of any other country." 1S7 

Eecent studies by the United Nations Food and Agriculture 
Organization indicate that Chile may have overstated the importance 
of fisheries to her total economy. Chile is not listed among the 
fourteen leading countries whose product of sea fisheries is as much 
as one per cent or more of the aggregate domestic product, nor is she 
listed among the seventeen leading countries whose sea fishery landings 
are as much as $500 or more per capita of national income per year. 188 



185 UrN. Doc. A/2456, Annex II, 46 (1953). 

^Ibid. The I.L.C. took a different view in its final draft articles in 1956, 
saying, "The Commission considers that international law does not permit an 
extension of the territorial sea beyond twelve miles." U.N. Doc. A/3159, 4 
Art. 3(2), (1956). It is often claimed that each state may determine its own 
limits of territorial waters based upon what is reasonable, presumably with the 
reasonableness to be determined subjectively by the coastal state. The Inter- 
national Court of Justice has effectively answered such contentions by saying 
in the Norwegian Fisheries Case: "The delimitation of sea areas has 
always an international aspect; it cannot be dependent merely upon the 
will of the coastal State as expressed in its municipal law. Although it is 
true that the act of delimitation is necessarily a unilateral act, because only the 
coastal State is competent to undertake it, the validity of the delimitation with 
regard to other States depends upon international law." I.C.J. Reports 116, 132 
(1951). 

187 1 U.N. Leg. Ser. 6 (1951). 

188 U.N. Prep. Doc. No. 13 A/CONF. 13/16, 2-5 (1957). 



54 

While it was valid for Chile to have disregarded her meager 
and in some cases non-existent continental shelf, geologically speak- 
ing, in establishing fisheries protection zones, 189 it was completely con- 
trary to international law, as well as contrary to her own long-run 
interests, for her to have claimed sovereignty over a 200-mile belt of 
adjacent seas for the protection of fisheries. These claims of sover- 
eignty over high seas fisheries are reminiscent of the attempts of 
Spain, Portugal and the Scandinavian States three centuries ago to 
establish sovereignty over areas of the high seas in order to monopolize 
trade and fishing, 190 attempts which gradually failed under the 
constant pressure of various maritime states for the establishment of 
freedom of the seas 191 and the eventual realization that the greatest 
benefit to all states would ensue from the widest possible sharing of 
this great common resource. 

Yet, while emphasizing the invalidity of Chile's claim to 
sovereignty over a 200-mile band of high seas adjacent to her coasts, 
it is only fair to protest against some of the more intemperate criti- 
cisms of the Chilean action which impute bad faith to Chile, suggest- 
ing that she "may justly be suspected of employing the continental 
shelf as protective cover for assertions of a wholly different 
character." 192 

There is no more justification for suggesting that Chile 
employed the continental shelf as "protective cover for assertions of a 
wholly different character," than there would be for a similar suggest- 
ion as to the United States claim to fisheries conservation zones, even 
assuming that the United States had combined her two proclamations 
(fisheries conservation and continental shelf) into a single document, 
as did Chile. 



189 The United States proclamation establishing fisheries conservation zones, 
issued on the same day as the United States proclamation on the continental 
shelf, made no reference to the continental shelf and indeed did not even limit 
said zones to 200 miles from shore, as did the Chilean proclamation, but specified 
zones "in those areas of the high seas contiguous to the coasts of the United 
States wherein fishing activities have been or in the future may be developed 
and maintained on a substantial scale." (Presidential Proclamation No. 2668, 
September 26, 1945, 59 Stat. 885.) The omission of any reference in the United 
States proclamation on fisheries to the continental shelf was hardly an over- 
sight, in view of the fact that the proclamation on the continental shelf was 
issued the same day. 

190 Fulton, op. cit., footnote 52 (at 4). 

M1 Ibid, at 338 et. seq.; Colombos, The International Law of the Sea 39-56 (3d 
rev. ed. 1954) ; Potter, The Freedom of the Seas 1-96 (1924). 

192 Anninos, The Continental Shelf and Public International Law 43-44 (1953). 
Also see Lauterpacht, op. cit., footnote 88 (at 412-13). 



55 

A careful reading of the Chilean proclamation reveals that the 
specification of width is in the paragraph referring to the protection 
zones for whaling and deep sea fisheries in the "continental and island 
seas," and not in the paragraph which relates to the claim of national 
sovereignty over the continental shelf in which there is no assertion 
of width but only a disclaimer of depth under superjacent waters as 
the criterion for limiting a coastal state's rights to the resources in and 
under {not above) said shelf . 193 

Moreover, the comments of the Government of Chile to the 
International Law Commission indicate that she was not trying to use 
the continental shelf doctrine as a "guise" or "protective cover" for 
claiming sovereignty over the fisheries zones out to 200 miles from 
shore. On the contrary, Chile clearly recognized that she had a nar- 
row and in some cases a non-existent continental shelf in terms of the 
geological concept of a 200-meter depth limit. For this reason she 
argued strongly for the depth-of -exploitability test for the continental 
shelf, rather than the fixed depth limit, citing on her behalf the Com- 
mission's own 1950 report that "where the depth of the waters per- 
mitted exploitation, it should not necessarily depend on the existence 
of a continental shelf." 194 

The Chilean position in regard to the conservation of fisheries 
is therefore consistent in the following respect. If the legitimate 
claims to the resources of the sea bed and subsoil of the contiguous 
submarine areas are not dependent upon the existence of a continental 
shelf, defined by a 200-meter depth limit, then it is logical to argue 
that the right of a coastal state to protect, or at least participate in the 
protection of, pelagic fisheries resources in the contiguous zone, what- 
ever its width, is not dependent upon the existence of a continental 
shelf. 195 

However, Chile claimed more than the right to protect fisheries 
resources in cooperation with other states; she claimed sovereignty 
over the high seas for this purpose. Although she acknowledged the 
"legitimate rights of other States on a basis of reciprocity . . ." and 
the "rights of free navigation on the high seas" 196 her exclusive claim 
is considerably greater than the United States inclusive claim of the 
right of "regulation and control" in certain "explicitly bounded con- 



193 1 U.N. Leg. Ser. 6-7 (1951) . 
194 U.N. Doc. A/2456, 44 (1953). 



195 Iceland has taken the opposite position, namely, that her fisheries are 
closely related to her continental shelf and therefore the fisheries in the super- 
jacent waters are as much a resource of the shelf for her as oil in the subsoil 
of the shelf is a resource for other countries, thereby justifying her exclusive 
claim to said fisheries. Iceland Law No. 44, Art. 1 (1948). Also see U.N. Doc. 
A/2456', 53 (1953). 

196 1 U.N. Leg. Ser. 6 (1951) . 



56 

servation zones," with full recognition of the rights of other states to 
fish in said zones. 197 

It is not the prerogative of Chile or of any other state to specify 
and limit the "legitimate (fishing) rights of other States on a basis of 
reciprocity." Such fishing rights outside of territorial waters, like 
the rights of navigation, belong to all states under the doctrine of 
freedom of the seas. The Convention on the High Seas provides 
that "the high seas being open to all nations, no State may validly 
purport to subject any part of them to its sovereignty." 198 A similar 
provision is contained in the Convention on Fishing and Conserva- 
tion of the Living Resources of the High Seas. 199 

It follows, therefore, that the 200-mile claim of Chile, like 
those of the other countries which have attempted to extend their ter- 
ritorial seas beyond three miles, thereby limiting the rights of other 
states to fish in those extended areas, is contrary to customary inter- 
national law and to the implied limitations within specific provisions 
of the Geneva Conventions. 

The United States proclamation relative to fisheries explicitly 
provides that 

". . . where such activities have been or shall hereafter be 
legitimately developed and maintained jointly by nationals 
of the United States and nationals of other States, explicitly 
bounded conservation zones may be established under agree- 
ments between the United States and such other States, and 
all fishing activities in such zones shall be subject to regula- 
tion and control as provided in such agreements." 200 

This provision makes a much greater concession to other 
states than does the Chilean proclamation which only recognizes the 
"legitimate rights of other States on a basis of reciprocity." The 
United States proclamation is therefore specific as to how the rights 
of other states are to be recognized and sets forth the procedures (i.e., 
through agreements) for resolving conflicts and establishing regula- 
tions and controls under the aegis of several states rather than under 
the exclusive control of the United States. 

It is worth emphasizing that the United States does not contem- 
plate exclusive control of the fisheries conservation zones, nor is sov- 
ereignty claimed over any part of the high seas, the proclamation pro- 
viding that "the character as high seas of the areas in which such con- 

197 Presidential Proclamation No. 2668, Sept. 26, 1945, 59 Stat . 885. 
188 U.N. Doc. A/CONF. 13/L. 53 and corr. 1 Art. 2 (1958). 

199 U.N. Doc. A/CONF. 13/L. 54 and Add. 1, Art. 1 (1958). 

200 Presidential Proclamation No. 2668, Sept. 26, 1945, 59 Stat. 885. 



57 

servation zones are established and the right to their free and unim- 
peded navigation are in no way thus affected." 201 

a. Summary and conclusions in regard to Chilean claims. 

1. The Chilean claim to sovereignty over her continental 
shelf, defining the shelf in terms of depth-of -exploitability rather than 
a 200-meter depth limit was entirely valid, no less valid than the claim 
of the United States to exclusive jurisdiction and control over her con- 
tinental shelves and entirely consistent with the 1958 Geneva Conven- 
tion on the Continental Shelf. 

2. The Chilean claim to sovereignty over a 200-mile belt of 
adjacent high seas for purposes of fishing was invalid and contrary to 
customary international law, and the implied limitations of the four 
Geneva Conventions of 1958, as well as being contrary to the long-run 
interests of Chile and other coastal states in developing and conserving 
fisheries and in exploiting other uses of the high seas. 

3. Some of the criticisms of Chile are unwarranted, particu- 
larly those which impute to her bad faith in using the continental shelf 
doctrine as a "guise" for claiming exclusive fishing rights. 

Peru, located to the north of Chile and finding herself in 
essentially the same geographical and geological situation, that is, 
without any continental shelf to speak of, issued a presidential decree 
in August 1947, 202 only a little more than a month after the Chilean 
declaration. Peru modeled her decree after her neighbor's except for 
one important difference. The Peruvian decree made no mention of 
the legitimate rights of other States to fish in her conservation zone on 
a "basis of reciprocity." For this reason the Peruvian decree is even 
more objectionable than the Chilean declaration with respect to 
fisheries. 

The United States protest, couched generally in the lan- 
guage used in the protest to Chile, objected (1) to the Peruvian claim 
of sovereignty over the continental shelf and the seas adjacent to the 
coast of Peru outside the generally accepted limit of territorial waters, 
and (2) to the failure, with respect to fishing, to accord recognition to 
the rights and interests of the United States in the high seas off the 
coasts of Peru. 203 

Another claim worthy of comment is that of El Salvador, 
which in simple, brief, and inclusive language made the sweeping asser- 
tion that its territory included "the adjacent seas to a distance of two 



201 ma. 

202 



Presidential Decree No. 781, "Concerning Submerged Continental or Insular 
Shelf," 1 Aug. 1947. Translation from 2 I.L.Q. 137 (1948) ; 1 U.N. Leg. Ser. 
16-17 (1951). 
203 U.N. Doc A/CN. 4/19, 113 (1950) . 
607631—61 5 



58 

hundred sea miles from low water line and the corresponding air space, 
subsoil and continental shelf." 204 

A subsequent paragraph provided that "the provisions of 
the foregoing paragraph shall not affect the freedom of navigation in 
accordance with the principles recognized under International 
Law." 205 This provision was comparable to the one in Peru's decree in 
that no mention was made of the rights of other nations, reciprocally, to 
fish in the 200-mile belt of adjacent seas. 

The United States sent a stronger note of protest to El 
Salvador than was the case with Chile and Peru, probably for two 
important reasons: (1) El Salvador claimed sovereignty, not only 
over the 200-mile adjacent seas, but over the corresponding air space. 
Sovereignty was claimed, the United States protest pointed out, de- 
spite the subsequent disclaimer by El Salvador that her claim did not 
affect the "freedom of navigation" on the seas^ and in the air. (2) 
Secondly, no indication was given by El Salvador that her claim to 
the 200-mile adjacent seas was for the purpose of establishing a 
fisheries protection and conservation zone. Instead, this broad ex- 
panse of high seas was stated to be part of the "territory" of the 
Republic. 

The claim of El Salvador was rightly opposed by the United 
States. 

(3) Claims affecting an indeterminate extension of sovereignty 
over adjacent submarine area and high seas. 

Representative of this type of claim are those of Argentina, 
Israel, and Australia. Barely a year after the Truman Proclamation, 
President Peron issued a decree "concerning national sovereignt}^ 
over epicontinental sea and the Argentine continental shelf." 206 It 
declared the epicontinental sea and continental shelf to be "subject to 
the sovereign power of the nation." 207 However, in an attempt to 
follow the pattern of the Truman Proclamations regarding the con- 
tinental shelf and fisheries conservation zones, the Argentine decree 
provided that 

"... for the purposes of free navigation, the character of the 
waters situated in the Argentine epicontinental sea and 
above the Argentine continental shelf, remains unaffected by 
the present Declaration." 208 



204 El Salvador, Political Constitution (Sept. 1950). MacChesney, op. cit., foot- 
note 71 (at 460). 1 U.N. Leg. Ser. 300 (1951). 

205 Ibid. 

209 1. U.N. Leg. Ser. 4 (1951), Argentine Decree No. 14,708 (11 Oct. 1946). 

207 Ibid. Art. 2. 

208 Ibid. Art. 3. 



59 

The Argentine decree nowhere defines the shelf or delimits 
the area claimed. It has been suggested that the reason for this fail- 
ure to delimit the shelf may be related to her Antarctic claims. 
Young points out that the Falkland Islands, to which both Argentina 
and Great Britain lay claim, are located on the South American 
continental shelf, even under the 100 fathom definition. 209 

The above suggestion appears to have merit for two reasons: 
First, the United States, in her protest to Argentina took special care 
to point out that the "reservations thus made . . . are not intended to 
have relation to or to prejudice any Argentine claims with reference 
to the Antarctic Continent or other land areas." 210 Secondly, the 
British declaration with regard to her own claims to the continental 
shelf of the Falkland Islands may be viewed as a counter move to the 
sweeping Argentine claim. 211 

Using essentially the same language that was used in the pro- 
tests to Chile and Peru, the United States protested the Argentine 
decree on the ground that it was "at variance with the generally ac- 
cepted principles of international law." 212 Several writers have also 
criticized the extensiveness of Argentina's claims which, like those 
of Chile, Peru and other Latin American countries, assert a greater 
degree of sovereignty over the epicontinental seas than is justified in 
view of the long-established rights of all states to fish in the high 
seas. 

Of special interest in this classification of claims to the con- 
tinental shelf involving a categorical extension of sovereignty with- 
out a precise limit on the basis of either depth or width of superjacent 
waters are the claims of Israel (1952) 213 and Australia (1953). 214 

The Israel claim is significant for two reasons: (1) First, the 
Israeli Government refused to use the term "continental shelf," 
despite its widespread use by the International Law Commission and 
by writers, preferring instead the term "submarine areas." (2) 
Secondly, the Israel claim explicitly avoided a definition or delimita- 
tion of the submarine area in terms of a precise depth or width, using 
instead the depth-of-exploitability criterion of the Commission's 
1951 provisional draft articles. 



209 Young, op. cit., footnote 148 (at 849, 853). Also see Anninos, op. tit., 
footnote 192 (at 25). 

210 1 U.N. Leg. Ser. 5 (1951). 

2U Falkland Islands Order in Council (21 Dec. 1950), Statutory Instruments 
No. 2100. 1 U.N. Leg. Ser. 305 ( 1951 ) . 

212 U.N. Doc. A/CN. 4/19, 115 (1950). 

218 MacChesney, op. cit., footnote 71 (at 475) . 

214 IUd. at 442. 



60 

It could have been anticipated from statements made prior to 
the issuance of her proclamation that Israel would eschew the use of 
the term "continental shelf" and would not delimit her claims by 
using the 200-meter limit. Her government commented as follows : 

"... The legal definition of the concept of the continental 
shelf should be divorced from the geological and scientific 
definition. That being so, the Commission's reasons for 
retaining the term 'continental shelf are not seen to be con- 
vincing, and a phrase such as 'submarine areas' is considered 
preferable." 215 

Although the Israel proclamation does not use the term "sover- 
eignty," there is no doubt from the language, which says that the 
territory of Israel is extended to include the sea bed and subsoil of 
the submarine area, that the intent was to claim full sovereignty over 
the continental shelf. 

Unlike the separate fisheries proclamation of the United States, 
or the proclamation of so many of the Latin American countries 
which combined their claims to the continental shelf and high seas 
fisheries, the Israel proclamation claimed only the resources of the 
submarine areas. A disclaimer clause was included saying that the 
claim to the submarine areas in no way "shall affect the character 
as high seas" above the submarine areas. 216 Differing sharply from 
most of the Latin American claims, the Israel proclamation reserved 
the rights of other states both as to navigation and fisheries, rather 
than to navigation alone. 

Two Australian proclamations issued 10 September 1953 
claimed the Australian continental shelf, and that of the Trusteeship 
Territory of New Guinea. 217 Neither of these proclamations defines 
or delimits the continental shelf. For example, the proclamation 
relating to the Australian continental shelf says, 

"... Australia has sovereign rights over the sea bed and 
subsoil of (a) the continental shelf contiguous to any part of 
its coasts. . . ." 218 

Just why Australia did not specify a precise depth limit for 
the continental shelf in her proclamation is puzzling in view of the 
fact that contemporaneously with the publication of the two proc- 

215 U.N. Doc. A/2456, 59 (1953) . 

218 MacChesney, op. cit., footnote 71 (Art. 2 at 475) . 

217 IUd. at 442-444. Also see "Australia and the Continental Shelf,'' 27 Austral- 
ian Law Journal 458 (1953) ; Goldie, "Australia's Sovereignty Over Its Contig- 
uous Continental Shelf," Australian Institute International Affairs, Vol. V. #4 
(Dec. 1953). 

218 MacChesney, op. cit., footnote 71 (at 442). 



61 

lamations an act was passed by the Australian Parliament, amending 
the Pearl Fisheries Act of 1952. This Act did define the continental 
shelf of Australia as 

"... the sea bed and subsoil of the submarine areas contig- 
uous to the coasts of Australia and of the submarine are as 
contiguous to the coasts of the Territories, to a depth of not 
more than one hundred fathoms." 219 

O'Connell admitted that the Australian proclamations lacked 
precision as to limits, but explained that this was done purposely be- 
cause the continental shelf "possesses the potentiality of expansion 
with the advance in techniques of exploitation of the sea bed." 220 
Yet, he referred with favor to the amending legislation relative to 
pearl fisheries which, as indicated above, did provide for a delimita- 
tion of the continental shelf according to the 100 fathom criterion. 

It is not easy to follow the arguments of O'Connell nor to 
understand the ambivalent position of Australia which on the one 
hand (i.e., in the continental shelf proclamations) denied the need 
for defining or delimiting the continental shelf because of the shelf's 
potentiality of expansion with the advance in techniques of exploita- 
tion of the sea bed, while on the other hand making a claim through 
contemporaneous legislation relating to pearl fisheries, for the purpose 
of excluding the Japanese pearling fleet from a submarine area, 
which precisely defined the shelf in terms of a 100 fathom depth limit. 

Perhaps the most plausible explanation is that the pearl 
fisheries amending act which defined the continental shelf in terms of 
a precise depth limit did so for the purposes of the Act. Hence, for 
the purpose of excluding the Japanese (and other) pearling fleets from 
the submarine areas adjacent to Australian coasts the continental 
shelf is one thing, defined and delimited, whereas for all other pur- 
poses and for all other claims by Australia the continental shelf is 
another thing, undefined and not delimited by the depth-of-exploita- 
bility criterion. 

These dual definitions of the continental shelf by Australia are 
the only ones encountered so far. 221 It would be unfortunate if the 



219 "Australia and the Continental Shelf," op. tit., footnote 217 (at 460). Also 
see O'Connell, op. tit., footnote 101 (at 193). 

220 IMd. 

221 Of course, it is true that the Geneva Convention provides a kind of dual 
definition of 200 meter depth or, beyond that limit, to where the depth admits 
of exploitation. Yet, this is duality of time and technology, not duality of 
function and resources. In the case of Australia the continental shelf is de- 
limited as to one resource (pearl fisheries) but not delimited as to all other 
resources. In the Geneva Convention the 200 meter depth limit or the depth-of- 
exploitability criterion apply no matter what resources are at stake. 



62 

Australian model were followed by other states because it would only 
add confusion to the establishment of the continental shelf doctrine 
in international law. It is surprising, indeed, that O'Connell should 
argue on the one hand that "it is this lack of precision in the various 
continental shelf claims that has provided a stumbling-block to the 
development of the law," 222 while at the same time defending the lack 
of precision in the Australian proclamations. 

4. Conclusion 

The foregoing analysis indicates some divergence in the extent of 
the claims by states to their continental shelves. However, the great- 
est divergence occurs in the assertions of states to varying degrees of 
control and jurisdiction, including unabashed claims of sovereignty, 
over the fisheries and other resources of the high seas above or beyond 
the continental shelf. 

Because of the disagreements which developed after 1945 as a 
result of the excessive claims by some states over high seas fisheries 
resources, it is fortunate indeed that the International Law Com- 
mission undertook a systematic study of the regime of the high seas in 
all of its major aspects, resulting in the formulation of a set of 73 
draft articles. Six of these draft articles, with few modifications, 
were incorporated into the Geneva Convention on the Continental 
Shelf. 

Most of the proclamations and decrees issued after the Truman 
Proclamation of 1945 referred to the measures previously adopted by 
other states as proof of an emerging international doctrine and 
practice with respect to the continental shelf. Admittedly it is de- 
batable as to when such international doctrine and practice became 
established as a part of customary international law, just as it is 
difficult to know when a route across a commons acquires "the char- 
acter of an acknowledged path." 223 

Although it is a matter of opinion as to exactly when the parade of 
proclamations on the continental shelf developed a path which was 
not only discernible, but well-defined and acknowledged, it seems clear 
and indisputable that the path has now been established ; the practice 
of states in regard to the continental shelf has become a part of 
customary international law. The 1958 Geneva Convention on the 
Continental Shelf in effect was declaratory of this new customary 
international law ; one may even say that the Convention codified the 
newly-established law of the Continental Shelf. 

While it is true that the 46 states which signed the Convention are 
not bound by it until after they have ratified it and it will not become 

222 O'Connell, op. (tit., footnote 101 (at 194) . 

223 Cobbett, Gases and Opinions on International Law 5-6 (3d ed. 1909). 



63 

effective until the twenty-second ratification or accession, the Conven- 
tion is a persuasive statement of the present law of the continental 
shelf. In any controversy which may arise between states which 
have signed the Convention, or even between states which have not 
signed it, the judicial or arbitral body called upon to resolve the 
particular dispute should give it great weight. 

In addition to the Convention's significant probative value in dis- 
putes which may arise, it will serve as a useful guide to state practice 
in the exploitation of continental shelf resources. As Miss Whiteman 
has said, 

". . . regardless of the number of its ratifications and acces- 
sions, the Convention, together with the greatly similar 1956 
International Law Commission draft on the same subject, 
will, in the future, doubtless have considerable influence on 
the content and direction of the developing international law 
with respect to the continental shelf." 224 

This is not to say that the articles of the Convention are so clear 
and final that they provide a ready answer to all disputes which may 
develop between states, or between competing claimants within a state 
(i.e., continental shelf exploitation versus fisheries, navigation, etc.). 
On the contrary, it is to be anticipated that some of the Articles may 
prove to be inadequate, necessitating subsequent modification. 

Finally, it is to be hoped that in interpreting and applying the 
articles of the Geneva Convention on the Continental Shelf, as well 
as the three companion Conventions of 1958, writers, arbiters, judges, 
statesmen, and others will weigh the balance of decision in favor of 
inclusive rather than exclusive uses 225 to the end that the coastal 
state's exercise of its exclusive rights to exploit the resources of the 
continental shelf will interfere as little as possible with navigation, 
communication, fishing, scientific investigation, and all other inclusive 
uses of the high seas by the world community of states. 



224 Whiteman, op. cit., footnote 143 (at 629, 659). 

225 McDougal & Burke, "Crisis in the Law of the Sea : Community Perspective 
Versus National Egoism," 67 Yale Law Journal 539, 588 (1958). 



CHAPTER II 

THE GENEVA CONVENTION ON THE CONTINENTAL 
SHELF; SOME PROBLEM 



Although it is not possible to contemplate all of the different 
problem situations which may arise in the exploitation by the coastal 
state of its continental shelf resources under the provisions of the 
Geneva Convention, a few typical problems may be suggested. 

In analyzing these problems it is well to remember that the presently 
known methods for exploiting the subsoil resources of the shelf fall 
into two groups : 

1. Exploitation from the land mass by means of tunnels, as in the 
case of coal mines, and directional drilling for oil, gas and other 
resources. 

2. Exploitation from the high seas by means of (a) fixed installa- 
tions; (b) mobile installations or units; and (c) floating devices. 1 

Mining tunnels from the mainland into the submarine subsoil have 
been used for more than a century. 2 This method is not likely to 
create any problems except in the case of two states facing each 
other with a common continental shelf. Here the problem which 
might arise is that State A could drill its tunnel beyond the con- 
tinental shelf boundary line as provided for in Article 6 of the Con- 
vention. 3 In such case State A would be liable in damages to com- 
pensate State B for the resources taken, and would be guilty of violat- 
ing the sovereignty of State B. 

Article 7 of the Convention suggests another problem which might 
arise in the distant future, although it is not likely to be the cause 
of any immediate concern in view of the limitations of present tech- 
nology. It provides : 

"The provisions of these articles shall not prejudice the 
right of the coastal State to exploit the subsoil by means of 
tunneling irrespective of the depth of water above the 
subsoil." 4 



1 U.N. Prep. Doc. No. 20, A/CONF. 13/25, 7 (1958) . 

2 Mouton, The Continental Shelf 290 (1952) ; Gidel, 1 Le Droit International 
Public de la Mer 510 ( 1932 ) . 

3 U.N. Doc. A/OONF. 13/L. 55 (1958) . 

4 Ibid., Art. 7. 

64 



65 

It is possible, of course, that States A and B, facing each other 
across a rather broad expanse of high seas where the submarine area 
between them was below the 200 meter depth, could be seeking the same 
resources. State A could be tunnelling (or using directional drilling) 
to exploit the resources and State B could be attempting to exploit the 
same resources from permanent installations or mobile units on the 
high seas. 

If such a situation should arise it would appear possible to invoke 
the boundary line provisions of Article 6 mentioned above and arrive 
at an equitable division of the resources involved. Unfortunately 
Article 7 did not use the term "directional drilling" as well as the 
term "tunnelling." However, in view of the general intent of the 
Convention to place no limitations upon the coastal state in the ex- 
ploitation of its submarine resources through the use of devices which 
originate on the land mass and hence do not per se interfere with 
fishing, navigation, etc., it is logical to interpret "tunnelling" broadly 
to include "directional drilling." 

One may conclude, therefore, that the problems arising out of the 
first method of exploiting continental shelf resources, namely, from 
tunnels or other devices originating on the land mass are not likely to 
be of major concern. However, when the continental shelf is ex- 
ploited from the high seas, either with fixed installations or with 
mobile or floating devices, then a number of possible problem situa- 
tions may be contemplated. 

A. PROBLEM 1. USE OF THE CONTINENTAL SHELF FOR 

PURPOSES OTHER THAN EXPLOITATION 

OF NATURAL RESOURCES 

Article 2 of the Convention provides : 

"The coastal State exercises over the continental shelf sov- 
ereign rights for the purpose of exploring it and exploiting 
its natural resources." 5 (Emphasis added.) 

Suppose that a state wishes to use its continental shelf for building 
permanent installations for defense purposes : radar platforms, sub- 
marine detection installations, weather stations, and even missile 
launching sites. Would such use be permitted under the provisions 
of the Convention and, if not, could they be justified under the 
inherent right of the state to take reasonable measures to provide for 
its defense ? 

Under a strict interpretation of Article 2 of the Convention, a 
coastal state is granted sovereign rights only for the purpose of ex- 

s lUd.,ATt 2. 



66 

ploiting the natural resources of its continental shelf. Hence it might 
be maintained that the state could not build radar platforms, weather 
stations, or other defense installations because these would not be for 
the purpose of exploiting the natural resources. 

On the other hand, it seems more logical to argue that the right to 
exploit natural resources carries with it the corollary right to use 
whatever means are reasonable. The Convention itself suggests a 
test for reasonable means : those which "must not result in any unjusti- 
fiable interference with navigation, fishing, or the conservation of the 
living resources of the. . . ." 6 Attaching lights, radar and weather 
equipment, and other devices to oil drilling installations, or mounting 
them on separate towers, would seem to constitute reasonable means of 
protecting the installations. 

Moreover, a coastal state which builds an oil drilling platform in 
conformity with the provisions of the Convention would be entitled 
to install thereon a weather station or a radar antenna as part of its 
right to take measures necessary for the protection of its installations. 7 
Certainly this is a necessary corollary to the state's exploitation of its 
continental shelf resources. It follows, therefore, that if a weather 
station, radar antenna or other devices would be permitted on an oil 
drilling platform to protect the installation, the text of the Conven- 
tion would imply permission to put such devices on separate platforms 
even though they might serve the dual purpose of servicing the oil 
exploitation safety zone and of augmenting the security of the coastal 
state against attack. 

It is a logical step to conclude that a coastal state could establish de- 
fense installations on its continental shelf which were in no way con- 
nected with its installations used for exploring and exploiting the 
natural resources. 

Finally, one may look to some defeated proposals at the Geneva 
Conference to conclude that a coastal state may use the continental 
shelf for the construction of defense installations quite apart from the 
exploitation of natural resources. Bulgaria introduced a proposal 
that "the coastal State shall not use the continental shelf for the pur- 
pose of building military bases or any installations which are directed 
against other states?* (Emphasis added.) Subsequently, Bulgaria 
revised the proposal by omitting the last six words to remove the sug- 
gestion of aggressive intent, saying, "the coastal State shall not use the 



6 IUd., Art. 5(1). 
1 Ibid., Art. 5(2). 
8 U.N. Doc A/CONF. 13/C. 4/L. 41 (1958) . 



67 

continental shelf for the purpose of building military bases or installa- 
tions." 9 The proposal was defeated. 

India subsequently introduced a similar proposal which also failed. 10 
Hence, it is clear that the delegates who drafted and approved the Con- 
vention on the Continental Shelf purposely did not deny the right of 
the coastal state to build defense installations on its continental shelf 
for the purpose of augmenting its security against attack. However, 
it is reasonable to expect that such defense installations, like those used 
for exploiting the natural resources, would not be permitted to result 
"in any unjustifiable interference with navigation, fishing or the con- 
servation of the living resources of the sea. . . ." " 

Quite apart from interpretations of the Convention on the Continen- 
tal Shelf and inferences from defeated proposals which suggest that a 
state may build defense installations on its continental shelf, perhaps 
the most compelling reason justifying the building of radar platforms, 
weather installations and other devices on the shelf even for the sole 
purpose of increasing the coastal state's security is the inherent right 
of each state to provide for its own protection. Nothing in the Con- 
vention on the Continental Shelf, or in any of the other three Geneva 
Conventions diminishes that right in the slightest. This being the case, 
one may justify such security installations not only under a broad in- 
terpretation of the Convention, but also under the inherent right of 
self-defense. 12 



B. PROBLEM 2. USE OF NEUTRAL STATE'S CONTINENTAL 

SHELF SAFETY ZONE AREA AS A BASE OF 
NAVAL OPERATIONS BY AN OVERSEAS 
STATE 

FACTS : State A, a coastal state, has developed an extensive cluster 
of oil drilling installations on the continental shelf some distance 
beyond her territorial sea but near a recognized sea lane.* 
In accordance with the provisions of Article 5 of the Geneva Conven- 
tion on the Continental Shelf, State A has established a safety zone 
extending to a distance of 500 meters around the installations as meas- 



*See Diagram. 

9 U.N. Doc. A/CONF. 13/0. 4/L. 41/Rev. 1 (1958). 

10 U.N. Doc. A/CONF. 13/0. 4/L. 57 (1958) . 

11 IUd., Art. 5(1). 

12 U.N. Charter, Art. 51. See Kunz, "Individual and Collective Self-defense in 
Article 51 of the Charter of the United Nations," 41 A.J.I.L. 872-9 (1947). 
Bowett, Self-Defense in International Law 66 (1958). 



68 

ured from each point of their outer edge, and has notified all na- 
tions of this safety zone. 13 

The distance between installations varies from 400 to 1,000 meters, 
thus providing sufficient clearance for the passage of vessels through 
the waters of the safety zone. State A has put lights and foghorns 
on each of the installations to warn ships which might stray from the 
recognized sea lane. She has also equipped some of the installations 
with defensive radar antenna and sonic devices in augmentation of 
her own security. 

War breaks out between States X and Y, whereupon State A notifies 
each of the belligerents of her neutrality. 



13 "Article 5 

"1. The exploration of the continental shelf and the exploitation of its natural 
resources must not result in any unjustifiable interference with navigation, 
fishing or the conservation of the living resources of the sea, nor result in any 
interference with fundamental oceanographic or other scientific research carried 
out with the intention of open publication. 

"2. Subject to the provisions of paragraphs 1 and 6 of this article, the coastal 
State is entitled to construct and maintain or operate on the continental shelf 
installations and other devices necessary for its exploration and the exploitation 
of its natural resources, and to establish safety zones around such installations 
and devices and to take in those zones measures necessary for their protection. 

"3. The safety zones referred to in paragraph 2 of this article may extend to a 
distance of 500 metres around the installations and other devices which have 
been erected, measured from each point of their outer edge. Ships of all national- 
ities must respect these safety zones. 

"4. Such installations and devices, though under the jurisdiction of the coastal 
States, do not possess the status of islands. They have no territorial sea of 
their own, and their presence does not affect the delimitation of the territorial 
sea of the coastal State. 

"5. Due notice must be given of the construction of any such installations, and 
permanent means for giving warning of their presence must be maintained. 
Any installations which are abandoned or disused must be entirely removed. 

"6. Neither the installations or devices, nor the safety zones around them may 
be established where interference may be caused to the use of recognized sea 
lanes essential to international navigation. 

"7. The coastal State is obliged to undertake, in the safety zones, all appro- 
priate measures for the protection of the living resources of the sea from harm- 
ful agents. 

"8. The consent of the coastal State shall be obtained in respect of any research 
concerning the continental shelf and undertaken there. Nevertheless, the coastal 
State shall not normally withhold its consent if the request is submitted by a 
qualified institution with a view to purely scientific research into the physical 
or biological characteristics of the continental shelf, subject to the proviso that 
the coastal State shall have the right, if it so desires, to participate or to be 
represented in the research, and that in any event the results shall be published." 



69 




COASTLINE 



NOT DRAWN TO SCALE 

Diagram of problem situation continental shelf safety zone. 

State X has a large submarine fleet which has been effective in sink- 
ing ships of State Y which use the sea lane near State A's continental 
shelf installations. Part of State X's success is due to the fact that 
her submarines have been using State A's safety zone area around the 
installations without permission as a haven from attack and as a base 
of operations. Although these submarines have never surfaced within 
the safety zone, their periodic presence is known both to State A and 
State Y. Aside from the fact that the personnel of State A working 
on the installations have become fearful that the safety zone might 
become a battle area, the submarines have not impaired or endangered 
the production of oil. 



70 

Finally, State Y notifies State A that henceforth if any sub- 
marines are found in the safety zone they will be subject to attack, 
even though such attack might involve the destruction of one or more 
of the installations and the loss of life among State A's personnel. 

All three countries have ratified the Hague Convention XIII of 
1907, concerning the rights and duties of neutral powers in naval war. 

GENERAL QUESTION: What are the rights and duties of each 
of the three states : A (neutral) , X and Y (belligerents) ? 

SPECIFIC QUESTIONS : 

1. Does the provision of Article 5(3) of the Geneva Convention 
on the Continental Shelf requiring that ships of all nationalities must 
respect the safety zones established by the coastal state around its 
installations mean that all of the waters within the confines of the 
zone may be closed by the coastal state to vessels of other states for all 
purposes, or only for the purpose of, and to the extent necessary for, 
the protection of the installations ? 

2. Are the waters within the safety zone territorial sea ? 

3. If not, are they sufficiently analogous to territorial sea to cause 
the rights and duties of a neutral state under the Hague Convention 
No. XIII of 1907 to apply to the safety zone ? 

4. Does State A have the right under the Geneva Convention on 
the Continental Shelf, or an inherent right of self-defense quite apart 
from the Convention, to exclude the submarines of State X and the 
warships of State Y, and such other ships of both belligerents as 
might result in a collision of forces in the safety zone, in order to avoid 
the imminent danger in the zone of (a) possible serious impairment 
of State A's exclusive 14 use (i.e., exploitation of the continental shelf 
resources), and (b) possible serious impairment of the inclusive uses 
(i.e., navigation, fishing, etc.) by all states, including State A? 

5. Assuming that State A has the right to exclude all ships of both 
belligerents because of the (a) possible serious impairment of State 
A's exclusive use (i.e., exploitation of the continental shelf resources) , 
and (b) possible serious impairment of the inclusive uses (i.e., naviga- 
tion, fishing, etc.) of all states, does State A have the duty to do so ? 

Q 1. Does the provision of Article 5 (3) of the Geneva Conven- 
tion on the Continental Shelf requiring that ships of all nationalities 
must respect the safety zones established by the coastal state around 
its installations mean that all of the waters within the confines of the 



14 The terms "exclusive use" and "inclusive use" are used here in the same 
sense as used by McDougal & Burke to whom an indebtedness is acknowledged. 
McDougal & Burk, "Crisis in the Law of the Sea : Community Perspectives 
versus National Egoism," 67 Yale Law Journal 539 (1958) . 



71 

safety zone may be closed by the coastal state to vessels of other states 
for all purposes, or only for the purpose of, and to the extent neces- 
sary for, the protection of the installations ? 

The above question is not easy to answer because certain provisions 
of the Convention make it possible to support opposing arguments. 
Looking to the language of the Convention one finds in Article 3 the 
express provision that "the rights of the coastal State over the con- 
tinental shelf do not affect the legal status of the superjacent waters 
as high seas, or that of the airspace above those waters." 15 From this 
language it follows that the waters around the installations are high 
seas from which other states ordinarily may not be excluded, despite 
the right of the coastal state to establish a safety zone and to require 
that all ships respect it. This being the case, the waters within the 
safety zone could be used by all states for navigation, fishing, 
scientific research, and other purposes, provided that such uses do not 
endanger the installations or interfere unreasonably with the produc- 
tion of oil. 

Moreover, Article 5(7) provides that the "coastal State is obliged 
to undertake, in the safety zones, all appropriate measures for the 
protection of the living resources of the sea from harmful agents." 
This language implies that the waters around the installations, with- 
in and adjacent to the safety zone, are high seas in which all states 
may fish, subject to any limitations imposed by existing treaties or by 
the Geneva Convention on Fisheries, 16 and hence said high seas may 
not be closed by the coastal state. 

Finally, one finds support for the argument that safety zone waters 
are high seas, which normally may not be closed by the coastal state 
to other users, by noting a defeated Netherlands proposal in Commit- 
tee IV of the Geneva Conference which would have prohibited all 
ships over a certain size from entering the safety zone and would 
have made said area prohibited anchorage for all vessels. Nether- 
lands proposed that : 

"A group of such installations and devices shall be con- 
sidered as one unit if the distances are less than half a nauti- 
cal mile. Entrance into such units is forbidden for all ships 
of more than 1,000 registered tons, except exploration and 
exploitation craft .... The area inside such units shall be a 
prohibited anchorage." 17 
By defeating this proposal, Committee IV of the Geneva Confer- 
ence supported the principle that navigation through and anchorage 

15 U.N. Doc. A/CONF. 13/L. 55 (1958). 

18 U.N. Doc. A/CONF. 13/L- 54 and Add. 1 (1958). 

17 U.N. Doc. A/CONF. 13/42, 132 (1958) . 



72 

in the safety zone area surrounding the installations is insured to 
overseas states as a matter of right, subject, of course, to the corol- 
lary exclusive right of the coastal state to exploit the continental 
shelf resources, and the inclusive rights of all users to fish, etc., within 
the safety zone. 

When the coastal state establishes a safety zone around the installa- 
tions or devices on the continental shelf, the waters within the zone 
become what might be described as "protected high seas." 18 This 
term is formulated to designate a change in the character of the high 
seas within a particular area (i.e., within the safety zone) and for a 
limited time (i.e., until the installations are abandoned and removed 
or until the safety zone is discontinued even though the installations 
remain). 

Wherever an area of the high seas involves competing inclusive 
uses such as navigation, fishing, scientific research, cable laying, etc., 
each user has a general obligation to accommodate every other user 
in order to permit maximum possible benefits to all states. However, 
with the development of permanent installations on the continental 
shelf, and the creation of the right under the Convention for the 
coastal state to establish safety zones around the installation, the 
general obligation of accommodation has had to become specific and 
somewhat detailed within this limited area of the high seas, assuming 
of course that the coastal state exercises its right to establish such a 
zone. 

The superjacent waters of the continental shelf are designated by 
the Convention as high seas (Art. 3), but the waters within the safety 
zone should more propertly be thought of and designated as "pro- 
tected high seas," even though the Convention does not do so, because 
within the safety zone all users have more specific rights and duties 
relative to other users than in other areas of the high seas. These 
specific rights and duties are prescribed by the Convention on the 
Continental Shelf. For example, the coastal state is obligated to 
undertake in the safety zones all appropriate measures for the pro- 



18 It is the establishment of the safety zone around the installations by the 
coastal state which gives to the waters within the zone the character of "pro- 
tected high seas" and creates certain rights and duties in the coastal state 
which it does not have in the absence of a safety zone. It is true, of course, 
that even though a safety zone is not established, as in many instances it will 
not be since there is no duty of the coastal state to do so, the Convention pro- 
vides for certain rights and duties of various users in an undefined area around 
the installations. For example, the exploitation of the natural resources must 
not result in any unjustifiable interference with navigation, fishing, etc., without 
reference to whether a safety zone has been established or not. 



73 

tection of the living resources of the sea from harmful agents. 19 Also, 
ships of all nationalities must respect the safety zones, 20 and the 
coastal state is entitled to take measures in the zones for the protection 
of installation, devices, etc. 21 

That the special character of the high seas within the safety zone 
as "protected high seas" may be temporary is indicated by the fact 
that the Convention provides that when the installations are aban- 
doned or disused, they must be removed. 22 After the removal of the 
installations the safety zone would cease to exist and the "protected 
high seas" thereof would once again become just high seas, on which 
all users would resume their general obligations to accommodate all 
other users, except to the extent that treaties enunciated specific obli- 
gations. Moreover, since the Convention confers upon the coastal 
state the right to establish safety zones, but does not impose the 
duty to do so, the coastal state could disestablish safety zones, even 
though the installations remained. 

Thus it is clear that within the safety zone various users are pro- 
tected by certain express provisions of the Convention. The right to 
exploit a particular use within the safety zone, whether it be drilling 
for oil, navigating through the zone, fishing therein, conducting scien- 
tific research, laying submarine cables or pipelines, or doing other 
things, is prescribed by protective regulations covering this specific 
area of the high seas for as long as the safety zone exists. 

Although the coastal state has the exclusive right to exploit the 
natural resources of the continental shelf, the exercise of this right is 
circumscribed in a number of ways both within the safety zone and 
outside it, even though a safety zone may not have been established. 
Moreover, as between the several inclusive users within a safety zone, 
it may be necessary at times to accord some users preferential treat- 
ment over others. For example, those using the "protected high seas" 
of the zone for peaceful purposes may be entitled to preferential use 
as against belligerents under certain circumstances. 

While the Convention provides that the coastal State has the right 
to establish the safety zone and to take protective measures therein, 
this right normally would not justify the exclusion of other users from 
the zone, unless the other users were unreasonably impeding or 
endangering either the exploitation of the continental shelf resources, 
or the other uses of the "protected high seas" within the zone. 



19 Convention on the Continental Shelf Art. 5(7). U.N. Doc. A/CONF. 
13/L. 55 (1958). 

20 Ibid., Art. 5(3). 

21 Ibid., Art. 5(2). 

22 Ibid., Art. 5(5). 

607631—61 6 



74 

On the other hand, it could be argued, although the argument is 
less compelling, that the Convention contemplates that the safety zone 
may lawfully be closed to navigation, fishing and other uses as long 
as the installations are being used for the exploitation of the resources 
of the continental shelf. The first argument in support of this 
position is based upon Article 5(6) of the Convention which provides : 

"Neither the installations or devices, nor the safety zones 
around them may be established where interference may be 
caused to the use of recognized sea lanes essential to inter- 
national navigation. 23 

This language suggests that most navigation, if not all, is to take 
place in recognized sea lanes wherein continental shelf installations 
may not be located. Conversely, it may be inferred that such installa- 
tions are to be located in waters which are not ordinarily to be used 
for navigation, except by the coastal state in servicing her installa- 
tions, at least not so long as the installations are in use. Hence, the 
safety zone could be considered closed to navigation. 

Still another argument against permitting any navigation into or 
through the safety zone surrounding the installations is to be found 
in the preparatory document which the delegates had before them in 
drafting the general requirement that "ships of all nationalities must 
respect these safety zones." 24 In response to a question as to the 
need for a safety zone around oil drilling installations on the con- 
tinental shelf, an oil industry spokesman said, 

"It is desirable to establish a safety zone around the installa- 
tions for the exploration and exploitation of the mineral re- 
sources of the continental shelf because of the possible pres- 
ence of hydrocarbon vapours. ... It would be desirable to pro- 
hibit entrance to these zones altogether, because any vessel, or 
its personnel, who may be unaware of the hazards involved, 
might unwittingly provide a source of ignition for the hydro- 
carbon vapours which could be present." 25 (Emphasis 
added) 

The statement of the oil industry spokesman emphasizes the ex- 
cessive danger of permitting entrance into the zones around oil well 
installations, at least by surface vessels which might ignite the hydro- 
carbon vapors. However, even assuming that this reasoning is valid 
for surface vessels, it would have no applicability in the present in- 
stance unless the submarines of State X surfaced in the safety zone, 



23 U.N. Doc. A/CONF. 13/L. 55 (1958). 

24 Ibid., Art. 5(2). 

25 



U.N. Prep. Doc. No. 21, A/CONF. 13/26, 5 (1958). 



75 

which they have not done thus far, or unless the surface ships of State 

Y entered the zone to destroy the submarines. Moreover, it would 
not apply where the installations were used for the extraction of 
resources which did not produce dangerous hydrocarbon vapors. 
Conclusion with respect to Question 1 : 

The more logical arguments lead to the conclusion that the waters 
within the safety zone around the continental shelf installations are 
"protected high seas" which may be used concurrently by all states 
for navigation, fishing, and for other purposes, subject only to the 
limitation that such uses must not unreasonably interfere with nor 
unduly endanger the operation of the installations by the coastal state, 
and subject to the obligation of each user to accommodate every other 
user. 

Since navigation contemplates subsurface as well as surface navi- 
gation, and war vessels as well as merchantment, State X's submarines 
could traverse or anchor in the safety zone, provided that in doing so 
they did not impair or endanger the production of oil by State A. 
The facts indicate that State X's submarines thus far had not impaired 
or endangered State A's oil production. Therefore, in the early stages 
of its use of the safety zone, State X would not be in violation of the 
Convention. Hence, until the ultimatum was received from State Y, 
indicating the possibility of imminent collision of forces in the safety 
zone, including possible damage to the installations and the personnel 
thereof, State A would not have the right to order State X's sub- 
marines to cease using the safety zone for a haven and a base of naval 
operations against State Y. Of course, it could be argued that State 

Y has a right to attack the submarines of State X within the safety 
zone on sight without an ultimatum to State A, since the waters of said 
zone are a part of the high seas. However, the waters are of a special 
kind which we have described as "protected high seas." Although 
the coastal state does not have as extensive rights vis- a vis belligerents 
in these "protected high seas" of the safety zone as she has in the 
neutral waters of her own territorial sea, she does have greater rights 
than she has on the high seas. As will be seen later, these rights of 
the coastal state include the right to take "protective measures" in 
order to safeguard her installations. In extreme cases these protec- 
tive measures could result in an exclusion of the submarines of State 
X. Hence, it is debatable whether State Y would have the right to 
attack the submarines of State X in the "protected high seas" of the 
safety zone without first notifying State A of her intention to do so. 
Such notification would permit State A to take whatever protective 
measures were necessary to protect her installations, including the 
exclusion of State X's submarines from the safety zone waters. 



76 

Q 2. Are the waters within the safety zone a territorial sea? 

The Convention provides an unequivocal answer to this question. 
Article 5(4) says, 

"Such installations and devices, though under the juris- 
diction of the coastal State, do not possess the status of 
islands. They have no territorial sea of their own, and 
their presence does not affect the delimitation of the 
territorial sea of the coastal State." 26 

It is clear, therfore, that the man-made installations are not like 
natural islands which do have a territorial sea of their own. Hence 
the rights and duties of a neutral state with respect to its territorial 
sea would not apply. 

Q 3. If the waters within the safety zone are not territorial seas, 
are they sufficiently analogous to territorial sea to cause the rights 
and duties of a neutral state under the Hague Convention No. XIII 
of 1907 to apply? 

In order to answer this question it may be helpful to look at some of 
the articles of the Hague Convention No. XIII of 1907 to which all 
three states are parties. 27 

"Article I. Belligerents are bound to respect the sovereign 
rights of neutral Powers and to abstain, in neutral territory 
or neutral waters, from all acts which would constitute, on 
the part of the neutral Powers, which knowingly permitted 
them, a non-fulfillment of their neutrality. 

"Article V. Belligerents are forbidden to use neutral ports 
and waters as a base of naval operations against their adver- 
saries, and in particular to erect wireless telegraph stations 
or any apparatus for the purpose of communicating with 
belligerent forces on land or sea. 

"Article VI. The supply, in any manner, directly or in- 
directly, by a neutral Power to a belligerent Power, of 
vessels of war, stores, or war material of any kind whatever, 
is forbidden. 

"Article XIII. If a Power which has been informed of 
the outbreak of hostilities learns that a belligerent ship of 

26 U.N. Doc. A/CONF. 13/L. 55 (1958). 

27 For full text see U.S. Naval War College International Law Situations 1908 
213-222 (1909) : 36 Stat. 2415; U.S.T.S. 545; II Malloy's Treaties. 2352 (1910). 



77 

war is in one of its ports or roadsteads, or in its territorial 
waters it must notify the said ship to depart within twenty- 
four hours or within the time prescribed by the local 
regulations." 

One of the purposes of a declaration of neutrality is to keep bellig- 
erents and their destructive forces from harming persons or property 
of the neutral state located within the territory or aboard her ships. 
Although continental shelf installations might be considered akin to 
ships, it seems more appropriate to classify them as man-made islands 
and hence a part of the State's territory. As such they are entitled 
to be free from involvement in hostilities unless they are being used to 
assist one of the belligerents. 

Article I of the Hague Convention above indicates that belligerents 
are bound "to respect the sovereign rights of neutral powers" and are 
"forbidden to use neutral ports and waters as a base of naval opera- 
tions against their adversaries." It might be argued that since the 
continental shelf installations themselves are subject to the sovereign 
rights of State A, the waters adjacent to those installations within 
the safety zone, while not territorial waters as such, nevertheless 
could be considered "neutral waters" from which State A could ex- 
clude the submarines of State X in order to keep the fighting away 
from the installations (i.e., away from the territory of State A). 

However, in the interest of providing for the freedom of the high 
seas and their maximum use by all states, including belligerents, the 
sounder view is that the waters around the continental shelf installa- 
tions are not neutral waters by analogy to territorial waters which 
the Convention specifically says they are not, but are "protected high 
seas." This being so, State X is perfectly free to traverse or anchor 
in State A's safety zone, subject to the specific obligations imposed 
by the Convention in what we have designated "protected high seas." 
Since the waters around the installations are not "neutral waters" 
State A has neither rights nor duties as a neutral under the Hague 
Convention No. XIII of 1907 with respect to those waters. More- 
over, the mere fact that the presence of a cluster of State A's conti- 
nental shelf installations in the high seas incidentally affords some 
assistance to one of the belligerents does not negate State A's 
impartiality as a neutral. 

Of course, if State A permitted State X's submarines to erect wire- 
less telegraph stations or any apparatus on the installations them- 
selves for the purpose of communicating with belligerent forces, which 
action is prohibited under Article V of the Hague Convention No. 
XIII of 1907, or permitted State X to refuel the submarines from 



78 

the installations, also prohibited by the Convention, 28 such action 
would constitute a violation of State A's neutrality since the installa- 
tion is part of State A's territory over which she has "sovereign rights" 
and "exclusive use" under the provisions of the Convention on the 
Continental Shelf. 29 In such case, State A would have a duty to 
force State X to discontinue using the installations or she would 
violate her neutral status. 30 

Q 4. Does State A have the right under the Geneva Convention 
on the Continental Shelf, or an inherent right of self-defense quite 
apart from the Convention, to exclude the submarines of State X and 
the warships of State Y (and such other ships of both belligerents 
as might result in a collision of forces in the safety zone) in order 
to avoid the imminent danger in the zone of (a) possible serious im- 
pairment of State A's exclusive use (i.e., exploitation of the con- 
tinental shelf resources), and (b) possible serious impairment of the 
inclusive uses (i.e., navigation, fishing, etc.) by all states, including 
State A. 

The answer to the first part of this question depends upon the inter- 
pretation of the language of the Convention which gives the coastal 
state the right "to establish safety zones around such installations and 
devices and to take in those zones measures necessary for their protec- 
tion," 31 and the right to demand that "ships of all nationalities must 
respect these safety zones." 32 

At the outset it is clear that this Convention and the other three 
drafted at Geneva in 1958 contemplated peacetime uses of the con- 
tinental shelf, the high seas, territorial waters and contiguous zones. 
Although a neutral state's rights on the high seas are restricted in 
certain respects during a war (e.g., a belligerent has the right of visit 
and search, blockade and, under certain circumstances, the right of 
capture and condemnation of neutral ships) such restrictions do not 
apply to a state's continental shelf installations (i.e., its territory). 

Hence, it may be argued that when the Convention provides that 
"ships of all nationalities must respect these safety zones," this duty 
to the coastal state applies whether the states of the world are at peace 



28 Art. VI of the Hague Convention No. XIII of 1930 provides : 

"The supply, in any manner, directly or indirectly, by a neutral Power to 
a belligerent Power, of vessels of war, stores, or war material of any kind 
whatever, is forbidden." 

29 U.N. Doc. A/CONF. 13/L. 55, Art. 2(1), (2), (1958). 

30 Of course, the mere violation by State A of her neutral status would not 
cause the neutrality to end. II Oppenheim^-Lauterpacht 752 (7th Ed., 1952). On 
the neutral's duty of impartiality see Tucker, U.S., Naval War College, Inter- 
national Law Studies, 1955, 202 (1957). 

31 U.N. Doc. A/CONF. 13/L. 55, Art. 5(2) (1958) . 
sa IMd., Art. 5(3). 



79 

or some of them are at war. The "respect" required of maritime 
states is that which is reasonably necessary to prevent damage to the 
personnel and installations within the safety zone and to prevent im- 
pairment of the use of these "protected high seas" by all states for 
fishing, navigation, and other uses. 

It might be argued that State A would be entitled to decree that 
all warships of States X and Y could not traverse, anchor in or 
otherwise use the safety zone from the inception of and during the 
belligerency because of the possible danger to the installations and 
their personnel resulting from any use by the belligerents. To sup- 
port such an argument would be to grant the coastal state the same 
rights against belligerent warships in the "protected high seas" of 
the safety zone as the coastal state has in its territorial sea from which 
it may exclude belligerent warships entirely. 33 Such an extensive 
grant of rights to the coastal state would go too far inasmuch as the 
"protected high seas" of the safety zone are not the equivalent of 
territorial seas. 

The protective measures which the coastal state may take in the 
safety zone under the Convention are only those which are necessary. 
Although it is not possible to determine at any given time what meas- 
ures will be necessary in the future, as a broad general principle 
"necessary measures" would not include total exclusion of belligerent 
warships from the safety zone unless and until there is a clear indi- 
cation of imminent danger to the various uses within the zone. 

In the present case when State Y notified State A of intended use 
of force against the submarines of State X in the safety zone, if the 
submarines were not excluded from the zone, the danger of immediate 
and serious impairment of all uses, both exclusive and inclusive, 
within the safety zone became readily apparent. Hence, at this point 
State A would be entitled to take action with respect to the belliger- 
ents which she normally would not be entitled to take in the absence 
of such imminent danger. Upon receipt of State Y's ultimatum, State 
A then would have the right under the Convention to exclude the 
submarines of State X and the warships of State Y, and such other 
ships of both belligerents as might result in a collision of forces in 
the safety zone, notwithstanding the fact that the waters in the zone 
are essentially high seas. The fact that these high seas have become 
"protected high seas" gives the coastal state this right of exclusion. 

It might be argued that the mere presence of State X's submarines 
in State A's safety zone would constitute an imminent danger to the 
continental shelf installations, and that the coastal state would there- 
fore be entitled to exclude all belligerent ships from the safety zone 



Tucker, U.S. Naval War College, International Laiv Studies, 1055 (1957). 



80 

at the outbreak of war. However, it seems more logical to conclude 
that the mere presence of the submarines in the safety zone would not 
constitute an imminent danger until the other belligerent (State Y) 
gave some indication by word or act of an intention to attack the 
submarines in the safety zone waters. While State Y was under no 
duty to announce her intention to attack the submarines within the 
safety zone, having done so it then became certain that the installa- 
tions and other peaceful uses of the safety zone were henceforth in 
imminent danger so long as the submarines remained in the safety 
zone. 

Despite the paramount goal in the world community of maintain- 
ing the greatest possible degree of freedom of the high seas for navi- 
gation, fishing, scientific investigation, and other uses by all states, 
and despite a preference for inclusive uses rather than exclusive uses, 
it seems logical to interpret the provisions of the Convention giving 
the coastal state the right to take protective measures within the safety 
zone as including, under unusual circumstances such as those present 
here, the right to exclude belligerent ships from the zone. As a corol- 
lary, State X would be required to "respect the safety zone" by sub- 
mitting to State A's decree to keep her submarines, and such other 
ships as might cause a collision of forces in the zone, out of the zone. 34 

Quite apart from the Convention it seems reasonable that State A 
would also have the right to exclude the submarines of State X and the 
warships of State Y, and such other ships of both belligerents as 
might result in a collision of forces in the safety zone, under her in- 
herent right of self-defense, which includes the right to protect her 
citizens and property (i.e., personnel and installations) from damage 
by belligerents. The inherent right of self-defense would permit the 
use of whatever force is necessary against both belligerents in the area 
of the installations. 

Q 5. Assuming that State A has the right to exclude all ships 
of both belligerents because of the (a) possible serious impairment of 
State A's exclusive use (i.e., exploitation of the continental shelf re- 
sources), and (b) possible serious impairment of the inclusive uses 
(i.e., navigation, fishing, etc.) of all states, does State A have the 
duty to do so ? 

We have already seen in the discussion of Question No. 3 that since 
the waters around the installations are not "neutral waters" State A 



34 As a practical matter, if State X found that the use of State A's safety zone 
was of material benefit to her submarines, the chances are that she would vio- 
late whatever provisions of the Continental Shelf Convention were necessary 
in order to maintain this advantage over State Y. 



81 

has neither rights nor duties as a neutral state under the Hague Con- 
vention No. XIII of 1907 with respect to those waters. 

Now, however, the question is whether the right of the coastal state 
to exclude belligerent ships from the safety zone, when those ships 
appear on the verge of engaging in battle in the zone to the possible 
impairment of the exclusive and inclusive uses therein, also carries 
with it a duty to exclude when the waters are "protected high seas" 
and not territorial seas. It will be remembered that in the case of 
territorial waters the neutral state has a duty to notify a belligerent 
ship to depart from said waters within twenty-four hours or within 
the time prescribed by the local regulations. 35 

Although the Convention on the Continental Shelf does not con- 
tain an article which expressly imposes a duty on the coastal state to 
exclude belligerents (or any state) from the safety zone, such a duty, 
as well as other duties, are clearly implied from certain provisions in 
the Convention. 

With respect to the implied duties of the coastal state, other than 
the duty to exclude belligerents under certain circumstances, it is clear 
that in exercising its right to establish safety zones around the instal- 
lations and to take necessary protective measures within such zones, 
the coastal state has two implied duties : ( 1 ) the duty to see that the 
protective measures are reasonable; and (2) the duty to see that they 
are uniform and non-discriminatory. That is, the coastal state could 
not apply certain measures and regulations to the ships of one country 
and not apply them to the ships of another country, although the 
coastal state could exclude the ships of two belligerents from the safe- 
ty zone because of the imminent danger to the installations, while per- 
mitting the ships of non-belligerents to continue to navigate through 
the safety zone, fish therein, etc. 

It. follows, therefore, that if the ships of one belligerent are ex- 
cluded, the ships of the other belligerent will also have to be excluded, 
not only for State A to fulfill its implied duty under the Convention 
to take protective measures in the safety zone which are non-discrimi- 
natory against similar classes of states (in this case, belligerents) , but 
also under its general duty as a neutral to maintain an attitude of im- 
partiality by refraining from giving such assistance and succor to one 
of the belligerents as would be detrimental to the other. 36 

Eeturning to the main question of whether State A has a duty to 
exclude the warships of the two belligerents from the safety zone be- 
cause of the imminent danger to all other users within the zone, it may 
be helpful to consider the two major groups or interests of the total 

35 See p. 76, Art. XIII. 

36 II Oppenlieim-LauterpacM, op. tit., footnote 30 (at 654, 675). 



82 

situation to whom State A owes duties: (a) the belligerent interests 
and (b) the world community interests. 37 

In a situation involving a neutral and belligerents, attention is 
usually focused principally upon the duty of the neutral state toward 
the belligerents. Without denying the importance of this duty, one 
may venture to suggest that in the continental shelf safety zone, which 
is unique in its creation of "protected high seas," involving a number 
of specific right-duty relationships between the various users, the 
coastal state has additional duties, beyond those owed to the belliger- 
ents, which are of even greater importance. These are the duties 
owed to the world community interests. 

With reference to the coastal state's duties to the world community 
interests, it is necessary to remember that the continenal shelf concept, 
as well as the Convention on the Continental Shelf, accords sovereign 
rights to the coastal state to explore and exploit the natural resources 
of the shelf. Concomitantly, safeguards and protections are written 
into the Convention to insure, among other things, that in the exercise 
of these sovereign rights the coastal state will not unjustifiably inter- 
fere with navigation, fishing and other inclusive uses of the high seas 
of the area and particularly in the "protected high seas" of the safety 
zone. 

Moreover, as indicated previously the coastal state is obliged to 
undertake, in the safety zones, all appropriate measures for the pro- 
tection of the living resources of the sea from harmful agents. This 
provision should be interpreted broadly to mean appropriate measures 
with respect to its own exploitation of the continental shelf resources 
and with respect to all other users within the safety zone. 

Hence, in the exercise of its exclusive right to exploit the continental 
shelf resources the coastal state assumes a clearly-implied duty 
within the safety zone, and with respect to it, vis-a-vis the world 
community interests which are entitled as a matter of right to use 
these "protected high seas" within the zone, namely, the duty to oper- 
ate her installations and to control the safety zone through necessary 

37 "World community interests" is used to denote the various interests of all 
inclusive users and all beneficiaries of the use of the "protected high seas" within 
the safety zone. Inclusive users would include both actual and potential users. 
Beneficiaries of the use of the "protected high seas" within the safety zone would 
include all states, maritime as well as land-locked, some of whom would be direct 
beneficiaries and others indirect. Within limits, the situation might be com- 
pared with a third-party beneficiary contract under which the coastal state as 
the obligor promises the other signatory states to the Convention to undertake 
necessary measures in the safety zone to protect the world community interests 
in return for world community acquiescence to the coastal state's sovereign 
rights to exploit the continental shelf resources, including the right to estab- 
lish the safety zone around its installations and to take protective measures in 
said zone for its own benefit. 



83 

protective measures in such manner as to provide a minimum of 
interference to and a maximum utilization by all users. 

Of course, all users includes belligerents as well as non-belligerents. 
Normally, belligerents will have the right to use the "protected high 
seas" of the safety zone and the coastal state will have the corollary 
duty to permit such use. However, when belligerents indicate that 
their continued use of the safety zone is likely to destroy or seriously 
hamper the various uses of the zone by peaceful states, the coastal 
state must fulfill its larger duty to the world community interests by 
exercising its right to exclude the belligerents. 

Only the coastal state can act for the world community interests 
in this situation to insure a minimum of interference to and a maxi- 
mum utilization by the non-belligerent users because only the coastal 
state has the right to establish and control a safety zone around its 
installations. Since this right is accorded by the world community 
interests to the coastal state, in accepting the right the coastal state 
assumes an implied duty to exercise the right whenever failure to do 
so could endanger or impede the normal rights of all non-belligerent 
users in the zone. 

Hence, it follows that since State A alone can take such action as 
is necessary, and has the implied duty to do so in order that the 
"protected high seas" of the safety zone will be available for the 
maximum number of inclusive uses which the states of the world may 
wish to pursue in said zone, State A has a duty to the world com- 
munity interests to exclude the warships of States X and Y. By act- 
ing uniformly against both of these belligerents, State A will fulfill 
its duty of maintaining impartiality as well as fulfilling its duty to 
the larger, more important group of non-belligerent users of the 
safety zone. 

While the exercise by State A of its duty to exclude the two bellig- 
erent states from the safety zone will deprive them of access to these 
"protected high seas" it is readily apparent that the benefits derived 
from the fulfillment of State A's duty to the world community inter- 
ests in insuring to all non-belligerents access to the waters of the zone 
for both exclusive and inclusive uses far transcends any disadvan- 
tages which may befall one or both of the belligerents as a result of 
their own actions. 

Thus it may be concluded that while the coastal state normally 
would not have the duty nor, as we have seen above, the right to deny 
the use of the "protected high seas" of the safety zone to any state, 
whether belligerent or non-belligerent, when the belligerency reaches 
the stage of an imminent danger to and possible serious impairment 
of all other uses within the zone, the coastal state has the duty (as 
well as the right) to exclude the belligerents from the safety zone. 



CHAPTER III 

THE 1958 GENEVA CONVENTION ON THE TERRI- 
TORIAL SEA AND THE CONTIGUOUS ZONE 

A. INTRODUCTION 

The Convention on the Territorial Sea and the Contiguous Zone, 1 
signed by 44 of the 86 participating states attending the United Na- 
tions Conference on the Law of the Sea at Geneva, Switzerland, from 
February 24 to April 28, 1958, represents little more than a half -loaf 
of accomplishment. A full loaf would have included agreement on 
the most important aspect of the territorial sea, its breadth; a more 
realistic concept of contiguous zones; and a solution of the coastal 
fisheries problem, or at least a separation of that problem from the 
question of the territorial sea. 

In 23 substantive articles the Convention summarizes the law of 
the territorial sea without ever specifying its exact breadth. Although 
Section II of the Convention is entitled "Limits of the Territorial 
Sea," those limits are expressed in terms so vague and indecisive as 
to be almost meaningless : 

"The outer limit of the territorial sea is the line every 
point of which is at a distance from the nearest point of the 
baseline equal to the breadth of the territorial sea." 2 

The Geneva Conference of 1958 actually lost some ground on this 
matter as compared with the agreement reached by the International 
Law Commission in its final articles (1956). 3 The Commission 



1 U.N. Doc. A/CONF. 13/L. 52 (1958) . 

2 Ibid., Art. 6. Jessup calls this language an "impeccable conclusion" of the 
Conference. Jessup, "The United Nations Conference on the Law of the Sea," 
59 Columbia Law Review 234, 243 (1959). A "meaningless conclusion" would 
seem to be somewhat more accurate than Jessup's description. "Impeccable" 
means free from fault or error ; irreproachably correct. Webster's New Inter- 
national Dictionary 1247 (2d Ed. Unabridged 1944). A statement is hardly free 
from fault or error and irreproachably correct which is meaningless. 

3 U.N. Doc. A/3159, 4 (1956). Article 3 of the I.L.C. final draft provided in 
part, (1) "The Commission recognizes that international practice is not uniform 
as regards the delimitation of the territorial sea. (2) The Commission considers 
that international law does not permit an extension of the territorial sea beyond 
twelve miles. (3) The Commission, without taking any decision as to the 

84 



85 

had concluded that "international law does not permit an extension 
of the territorial sea beyond twelve miles," and by implication at 
least had recognized the minimum breadth of three miles. But the 
Convention as adopted in 1958 contains no reference either to a sug- 
gested maximum or minimum, although the record of the Conference 
leaves little doubt that the claims of a few states to a territorial sea 
beyond 12 miles find no support by the vast majority of states. 

Committee I of the Geneva Conference became hopelessly dead- 
locked in trying to delimit the territorial sea, even on some com- 
promise proposals by the United Kingdom, 4 Canada, 5 the United 
States, 6 and other states 7 which would have increased the breadth 

breadth of the territorial sea up to that limit, notes on the one hand, that many 
States have fixed a breadth greater than three miles and, on the other hand, 
that many States do not recognize such a breadth when that of their own ter- 
ritorial sea is less. . . ." 

4 Despite her long adherence to the three-mile limit, the United Kingdom intro- 
duced a proposal to extend the territorial sea to six miles. However, it was 
a tempered proposal which would not have recognized sovereignty of the coastal 
state over the outer three miles since it preserved "existing rights of passage for 
aircraft and vessels, including warships, outside three miles." U.N. Doc. 
A/CONF. 13/C. 1/L. 134 (1 April 1958). 

5 U.N. Doc. A/CONF. 13/C. 1/L. 77/Rev. 3 (1958). This third revision of the 
Canadian proposal gave the coastal state a six mile territorial sea and exclusive 
fishing rights in an outer six miles as well. Also see U.N. Doc. A/CONF. 13/39, 
(Annexes) 209-254 for this and other proposals by various states. 

6 U.N. Doc. A/CONF. 13/C. 1/L. 159/Rev. 2 (1958 and U.N. Doc. A/CONF. 
13/39, (Annexes) 253 (1958). The essence of the revised U.S. proposal which 
came closer than any other to being adopted provided for a territorial sea of six 
miles plus a conditional exclusive right to fish in the outer six miles of a twelve 
mile zone. The condition gave other nations who had fished in the outer six 
miles for a period of five years immediately preceding the signature of this con- 
vention (the first proposal of the United States specified a ten-year period) the 
right to continue fishing in said area. 

7 Canada, India and Mexico entered a joint proposal which provided for a 
maximum breadth of territorial sea up to six nautical miles, except that if prior 
to 24 February 1958 (i.e. the start of the Conference) a state had declared its 
territorial sea to be in excess of six miles the breadth was to be so fixed but not 
exceeding twelve miles. U.N. Doc. A/CONF. 13/C. 1/77/Rev. 2 (1958) and U.N. 
Doc. A/CONF. 13/39/SR. 232 (1958). Previously India and Mexico had joined 
in proposing a 12 mile territorial sea (A/CONF. 13/C. 1/L. 79). Colombia also 
proposed 12 miles (A/CONF. 13/C. 1/L. 82 & Corr. 1), as did Yugoslavia with 
the additional provision that the minimum could not be less than three miles 
(A/CONF. 13/C. 1/L. 135). In addition to Canada, the United States, and the 
joint proposal of Canada India and Mexico, the following also proposed six miles 
for the territorial sea: United Kingdom (A/CONF. 13/C. 1/L. 134), Italy 
(A/CONF. 13/C. 1/L. 137), Ceylon (A/CONF. 13/C. 1/L. 118) and Sweden 
(A/CONF. 13/C. 1/L. 4). Peru proposed that no limit be specified other than 
"reasonable limits" and that the breadth be fixed "preferably by regional agree- 
ments" (A/CONF. 13/C. 1/L. 133/Add. 1 & 2). 



86 

from three miles, universally recognized as the minimum and 
presently supported by the greatest number of large maritime states 
in the world, to six miles. 

Although the United States proposal of a six-mile territorial sea 
failed by a mere seven votes to get the necessary two- thirds majority 
in the plenary session, 8 which was the closest that any proposal on 
the breadth of the territorial sea came to passing, it became apparent 
at the end of the Conference that further discussions on this crucial 
matter would achieve nothing and that the most judicious procedure 
would be to adopt the half -loaf as provided in the Convention. On 
the final day the Conference passed a resolution requesting the Gen- 
eral Assembly of the United Nations to consider the advisablity of 
convening another conference at a later date for the purpose of at- 
tempting to reach agreement on a specific breadth for the territorial 
sea. 9 This second conference on the law of the sea has been called 
for March, 1960. (See addendum to this chapter regarding the 1960 
Conference which failed to reach agreement on a delimitation of the 
territorial sea.) Actually it is the third world-wide conference re- 
lating to the territorial sea if one counts the ill-fated Hague Con- 
ference of 1930 10 at which the 47 states participating were in such 
heated disagreement that the conference ended without adopting any 
articles on the territorial sea and without a single proposal as to a 
specified breadth even being put to a vote. 11 

It is unfortunate, and somewhat ironical, that although the 1958 
Conference did not specify a breadth for the territorial sea, which 
it should have done, it did specify a breadth (12 miles) for the con- 
tiguous zone, which it should not have done. It would have been 
wiser to have concluded that a coastal state has the right to exercise 
the control necessary to prevent infringement of its customs, fiscal, 
immigration or sanitary regulations, within reasonable distances from 
the coast in contiguous zones beyond the territorial sea. 1 



12 



8 Dean, "U.N. Conference on the Law of the Sea," 38 State Dept. Bull. 1110 
(1958) ; Dean, "The Geneva Conference on the Law of the Sea: What Was 
Accomplished," 52 A.J.I.L. 607, 614 (1958). 

9 U.N. Doc. A/CONF. 13/L. 56 (1958) . 

10 24 A.J.I.L. 52 (1930) and Supp. 1-79, 169-258 (1930). 

"Reeves, "The Codification of the Law of Territorial Waters," 24 A.J.I.L. 
486, 492 (1930). 

"Jessup supports this view; Jessup, op. cit., footnote 2 (at 234, 244). The 
I.L.C., however, seems to have felt bound (without giving reasons) to the figure 
of 12 miles for the contiguous zone as adopted by the Preparatory Committee 
of The Hague Codification Conference of 1930. U.N. Doc. A/3159, 40 (1956). 
Poland introduced a desirable proposal which eliminated reference to a precise 
width of the contiguous zone and also included reference to security, but it 
failed. "In a zone of the high seas contiguous to its territorial sea, the coastal 



87 

When considering the limited rights of control which a coastal 
state may exercise in the high seas beyond a territorial sea in order 
to prevent violations of certain of its regulations, the test of reason- 
ableness as to area of control is more appropriate than a fixed limit. 13 
On the other hand, when a coastal state is exercising sovereignty, as 
in the case of its territorial sea, under which it has exclusive and un- 
limited rights over the waters and airspace above, except for the right 
of an overseas state to "innocent passage" on the sea, but not in the 
airspace, then the limit of that sovereignty should be both fixed and 
narrow. It should be fixed so that all states may know the exact 
border separating the sovereign area of the territorial sea from the 
free area of the high seas to inclusive use by all states. It should be 
narrow in order that the coastal state will encroach as little as pos- 
sible on the free and unfettered use by all states of the world's greatest 
common resource — the high seas. 

It would have been more in conformity with state practice and far 
more realistic to have framed the article in terms of contiguous zones 
because a state's area of control over adjacent high seas may need to 
vary depending upon the purpose of the control and upon local and 
world conditions at any given time. States do in fact claim the right 
to exercise limited control over contiguous zones of high seas of vary- 
ing widths adjacent to their coasts. 14 

A more basic fault of the Conference was the inclusion of the article 
on the contiguous zone in the Convention on the Territorial Sea. 15 
Since the waters of the contiguous zone are high seas it would have 
been more appropriate to have put the contents of this article in the 
Convention on the High Seas rather than tacking it on to the 23 sub- 
stantive articles on the territorial sea. Its inclusion in the Conven- 
tion on the Territorial Sea creates the danger that the rights of coastal 
states in the contiguous zone will be considered more nearly related 
to the sovereignty which the state has over its territorial sea than to 
the minimum, limited rights of control which actually exist. 16 More- 



State may take the measures necessary to prevent and punish infringements 
of its customs, fiscal or sanitary regulations, and violations of its security." 
U.N. Doc. A/CONF. 13/C. 1/L. 78 (1958). 

13 For Mr. Chief Justice Marshall's oft-cited test of reasonableness in this con- 
nection see Church v. Hubbart, 6 U.S. (2 Cranch) 187, 234-35 (1804). 

14 United Nations Synoptical Table, "The Law of the Sea," pamphlet by Society 
of Comparative Legal and International Law. 36 (1958). 

15 The I.L.C. in its final draft articles (1956) had the article on the con- 
tiguous zones (No. 66) clearly separated from the articles on the territorial sea 
(Nos. 1-25). This separation is preferable to the results achieved by the Geneva 
Conference of 1958. U.N. Doc. A/3159, 39 (1956). 

18 The United Kingdom and Greece made a similar argument in the plenary 
meetings of the Conference but were opposed by Canada and Ukrainian S.S.R. 
(U.N. Doc. A/CONF. 13/38, 69 (1958).) 



88 

over, for the states now claiming a territorial sea of 12 miles, the 
limits of said sea and the contiguous zone of 12 miles as provided 
in the convention are coextensive, making the contiguous zone mean- 
ingless and unnecessary. 

An analysis of the Conference record suggests that if the concept 
of contiguous zones had not only been separated from the Convention 
on the Territorial Sea, but also had been enlarged to include 
preferential (or in special cases, exclusive) fishing rights in said 
zones, quite apart from the proposals to extend the territorial sea 
primarily for the purpose of achieving exclusive fishing rights, it 
might have been possible to have retained the three-mile limit for 
the territorial sea, or at least to have secured agreement on a six-mile 
limit as proposed by the United States, Canada and other participants. 

In view of the failure of the Conference to agree upon a fixed 
breadth of the territorial sea, what is the present law ? The simplest 
answer, although not an entirely satisfactory one, is that the law 
is what it was before the Geneva Conference: uncertain. 

On the one hand, a greater number of states, including most of the 
major maritime powers, adhere to the three-mile limit than to any 
other single limit. 17 The three-mile limit is recognized by nations 
responsible for about two-thirds of the world's maritime traffic. 18 On 
the other hand, if the customary international law on this matter is to 
be determined by mere numbers of states which claim more than a 
three-mile territorial sea (i.e., 4, 6, 9, 10, 12, and even 200 miles) then 
it may be argued that the three-mile limit is not the law and one is 
left with the not-too-helpful conclusion of the International Law Com- 
mission that 

"The Commission, without taking any decision as to the 
breadth of the territorial sea up to that limit, (i.e., twelve 
miles) notes, on the one hand, that many States have fixed a 
breadth greater than three miles and, on the other hand, that 
many States do not recognize such a breadth when that of 
their own territorial sea is less." 19 



17 Sorensen, "The Law of the Sea," International Conciliation, No. 520, at 
244 (1958). 

18 In the meetings of the First Committee the Canadian delegate said that 
the three-mile limit had been recognized by nations responsible for some 80% 
of the world's maritime traffic. 3 Official Records (A/CONF. 13/39, 90 (1958) ). 
This same percentage was used by the British delegate to the Hague Conference 
in 1930 when he said that the limit of three miles was recognized "and adopted 
by maritime nations which possess nearly 80% of the effective tonnage of the 
world." Reeves, "The Codification of the Law of Territorial Waters," 24 
A.J.I.L. 494 (1930). As of December 31, 1958, sixty-five per cent is a more ac- 
curate figure. "Merchant Fleets of the World," 2-3, U.S. Dept. of Commerce, 
Maritime Administration (1958). 

19 U.N. Doc. A/3159 Art. 3(3), 4 (1956). 



89 

After the United States compromise proposal to extend the terri- 
torial sea to six miles failed in plenary session to get the necessary 
two-thirds vote, Arthur Dean, Chairman of the Delegation, empha- 
sized that the three-mile rule was still the established law which could 
only be changed by agreement. 20 Similarly, the United Kingdom dele- 
gate made a statement confirming the continued existence of the three- 
mile limit as the only breadth recognized under international law. 21 
By contrast, Professor Tunkin, Chairman of the Soviet Delegation, 
was equally convinced that "the three-mile limit is not and never has 
been a generally recognized rule in the law of the sea." 22 

While it is true that in recent years the world has witnessed an 
increasing number of claims by coastal states to a wider territorial 
sea, 23 the long history of state practice by the principal maritime 
states supports the conclusion that the three-mile limit still more 
nearly represents customary international law than any other figure. 24 
Certainly this minimum breadth of territorial sea represents the most 
rational preference viewed from the perspective of the world com- 
munity for achieving the maximum utilization of the high seas. 25 

What are the prospects for reaching agreement on a specific 
breadth of territorial sea at a future United Nations Conference? 
The answer to this important question depends upon a number of 
factors, some of which are unrelated to the basic question of the 



20 Dean "U.N. Conference on the Law of the Sea," op cit., footnote 8 (at 574). 
Dean, "The Geneva Conference on the Law of the Sea : What Was Accomplished," 
op. cit., footnote 8 (at 607, 616). Said Mr. Dean, "The fact that a two-thirds 
vote could not be obtained in favor of the three-mile limit shows merely a de- 
sire on the part of many nations to extend their territorial sea, not that such 
an extension in international law has been accomplished." (Ibid., at 616.) 

21 Report, First United Nations Conference on the Law of the Sea, Misc. No. 
15, 6 (^London, 1959). Also see U.N. Doc. A/C. 6/SR. 584 (1958). 

22 Tunkin, "The Geneva Conference on the Law of the Sea," International 
Affairs 47, 48 (Moscow, 1958) ; 2 Official Records (A/CONF. 13/38, 37 (1958)). 

23 MacChesney, U.S. Naval War College International Law Situation and 
Documents — 1956 401-501 (1957) ; Oda, "New Trends in the Regime of the 
Seas," 18 Zeitschrift Fur Auslandisches offentlisches Recht und Volkerrechi 
61-87 (1957). 

24 See generally, Jessup, The Law of Territorial Waters and Maritime Juris- 
diction 76 (1927). The Sovereignty of the Sea (1911) ; Crocker, Extent of the 
Marginal Sea (1919) ; Riesenfeld, Protection of Coastal Fisheries Under In- 
ternational Law (1942) ; Higgins and Colombos, International Law of the Sea 
(2d Ed. 1951). For a recent statement which confirms the validity of the 
three-mile rule until the present century, but suggests that state claims to a 
wider territorial sea have caused the rule to "melt away," see Garcia-Amador, 
The Exploitation and Conservation of the Resources of the Sea 26-28 (1959). 

25 McDougal & Burke, "Crisis in the Law of the Sea : Community Perspectives 
Versus National Egoism," 67 Yale Law Journal 539, 584 fn 154 (1958) (at 539). 

607631—61 7 



90 

values at stake in reconciling the competing claims to inclusive and 
exclusive uses 26 of the total resources of the sea. 

One of the most striking illustrations of the burdens which an exten- 
sion of the territorial sea from three to six miles (or to twelve miles) 
would place upon the freedom of the seas is the fact that of more than 
100 important international straits which are now high seas, more than 
fifty would be reduced to territorial seas if the six-mile rule replaced 
the three-mile rule, and all would become territorial, waters under a 
twelve-mile rule. For example, it has been pointed out in the case of 



26 The terms "inclusive and exclusive uses" are used here in the same sense as 
used by McDougal & Burke to whom an indebtedness is acknowledged. They 
have written : 

"By an exclusive claim is meant a claim to authority over an area or over 
specified activities which other states cannot share with the claimant state (the 
category of authority state A gets, state B cannot get). By such a claim, the 
claimant state commonly asserts a competence to apply its authority to all 
persons in an area or engaged in certain specified activities, irrespective of the 
nationality of the person. Examples may be noted in the claims coastal states 
make for control over 'internal waters' and 'territorial sea'. 

"By an inclusive claim is meant a claim to authority over an area or over 
specified activitites which the claimant state can, by some accommodation to 
avoid physical interference in use, share with another (the category of authority 
state A gets, state B can also get). By such a claim, the claimant state com- 
monly asserts a competence to apply its authority only to its own nationals, 
concedes a comparable authority with respect to the area or activities to other 
states with respect to their nationals and demands that other states reciprocally 
refrain from the exercise of authority over its nationals and their activities in 
the area. Examples may be noted in the claims states make to navigation and 
fishing on the high seas." 

McDougal and Burke, Ibid. It should be emphasized, of course, that even 
so-called exclusive uses are subject to accommodation with other uses. For 
example, a coastal state's sovereignty (i.e., the right of exclusive use) over its 
territorial sea is subject to the right of innocent passage (i.e., overseas states 
must be accommodated by permitting them to navigate through the territorial 
sea under certain conditions such as innocent passage). But the duty of ac- 
commodation in the case of the exclusive use is different from the less than 
in the case of inclusive uses. For example, the right of innocent passage may 
be limited by reasonable rules, and in some cases suspended if the coastal 
state, in a sense the dominant user, feels its security is jeopardized. By 
contrast, in the case of inclusive uses, the duty of accommodation is equally 
strong among all parties since no one user is dominant per se. Hence, an in- 
clusive user must accommodate all other users on the high seas. Each has 
equal access to the high seas for navigation, fishing, scientific investigation, 
cable laying, etc. Despite these refinements, and others which come into play 
in connection with safety zones around continental shelf installations, fisheries 
conservation zones, and "limited-exclusive-use" areas of the high seas for spe- 
cial purposes such as weapons testing in restricted zones normally open for 
inclusive use by all states, the simple formulation of exclusive use and inclusive 
use by McDougal and Burke is adequate to describe the two major types of 
competing claimants to the resources of the seas. 



91 

the Straits of Gibraltar that if the territorial sea is extended to six 
miles, the entire strait will become a territorial sea with no area of high 
seas remaining. 27 

While it can be argued that all states will still have the right of 
innocent passage through such international straits from one part of 
the high seas to another under the Corfu Channel Case, 28 and under 
provisions of the Convention on the Territorial Sea and the Contig- 
uous Zone, 29 the fact remains that the right of innocent passage is often 
viewed as a limited right subject to the "laws and regulations enacted 
by the coastal state" 30 and subject in special circumstances to tempo- 
rary suspension. 31 Moreover, one of the greatest burdens which the 
transformation of high seas into territorial seas in more than 100 inter- 
national straits would impose upon all states of the world, coastal and 
non-coastal, is to preclude the right to fly over the areas. Airspace 
over the territorial sea does not afford the right of "innocent passage," 
meaning that states which now fly over the high seas of these interna- 
tional straits would be burdened by having to request permission of the 
coastal states to do so, or fly more circuitous, and therefore more costly, 
routes. 32 

B. COASTAL FISHERIES AND THE TERRITORIAL SEA 

Basically the coastal fisheries problem is an economic struggle be- 
tween two sets of competing claimant states: those which may be 
described generally as "coastal fishing states" such as Canada, Ice- 
land, and a number of Latin American states, and the "overseas fish- 
ing states" such as the United States, the United Kingdom, Japan, 
and the Netherlands. 

The coastal fishing states want exclusive fishing off their coasts 
for a distance of 12 miles or more. By contrast, the overseas fishing 
states want a narrow exclusive fishing belt of only three miles, or at 
most six miles, in order that their fishing fleets may fish near the 
coasts of other states. Of course, some states such as the United 
States, the United Kingdom, Japan, and the Netherlands are both 
coastal fishing and overseas fishing states. Yet, despite this dual 



27 Dean, V.N. Conference on the Law of the Sea, op. cit., footnote 8 (at 574, 579). 

28 [1949] I.C.J. Rep. 4. 

29 U.N. Doc. A/CONF. 13/L. 52, Art. 16(4) (1958). It should be noted that 
the Convention goes beyond the decision in the Corfu Channel Case in that the 
Convention provides for passage from one part of the high seas to another 
part of the high seas or the territorial sea of a foreign State. (Emphasis added.) 
The decision was limited to passage between two parts of the high seas. 

30 Ibid., Art. 17. 

31 Ibid., Art. 18. 

32 See the cogent arguments of the United Kingdom delegate in the First 
Committee. 3 Official Records (A/CONF. 13/39, 104 (1958)). 



92 

fishing interest, these states are primarily overseas fishing states. 
They are also important maritime powers and therefore have long 
championed a narrow territorial sea of three miles in the over-all 
interest of the maximum freedom of the high seas. 

It should be emphasized that not all coastal fishing states neces- 
sarily want a twelve-mile (or wider) territorial sea; indeed some 
would prefer not to have it if there were another way to achieve an 
extended area of exclusive coastal fisheries. For example, Canada has 
favored a three-mile territorial sea for a number of years even though 
she is a coastal fishing state. In one of her early proposals in the First 
Committee of the 1958 Conference, Canada advocated a three-mile 
territorial sea, accompanied by a provision for exclusive fishing rights 
in the outer nine miles of a twelve-mile contiguous zone. 33 In a sub- 
sequent revision Canada proposed a six-mile territorial sea plus ex- 
clusive fishing rights in the outer six miles of the contiguous zone. 

The Canadian proposals, as well as those of the United States and 
other countries, indicate rather clearly the extent to which the coastal 
fisheries problem dominated the discussions on the territorial sea. In 
a report on the Geneva Conference to the Canadian House of Com- 
mons, Hamilton indicated the ambivalent attitude of the Canadian 
delegation, 

". . . our dilemma was, how could we reconcile the defense 
interests, freedom of the seas and the freedom of the air, 
which really requires a very narrow territorial sea, and the 
needs of our people on our coasts for some priority in 
harvesting fish off their shores?" 34 

The willingness of some states at the Conference to sacrifice the 
larger, more important values of security, freedom of the seas and 
freedom of the air, in order to gain exclusive fishing rights in an 
expanded territorial sea, was not only highly questionable but 
unnecessary. 

It was questionable in terms of values: from the perspective of 
the world community of states the value of exclusive rights to a few 
million tons of fish are not worth the burdens to security and maxi- 
mum freedom of the seas and the air which would result from an 
extension of the territorial sea. 

It was unnecessary because the quintessence of the solution, which 
seems to have been buried at the Conference under a multitude of 
irrelevant arguments, is that it is not essential to extend the territorial 



83 U.N. Doc. A/CONF. 13/C. 1/L. 77/Rev. 1 (1958) 
34 8 External Affairs (Aug. 1958) . 






93 

sea beyond the present three-mile limit in order to grant the coastal 
state preferential, or, in exceptional cases, exclusive fishing rights with- 
in limited areas beyond the territorial sea, whenever it is decided that 
this is desirable. 

The coastal fisheries problem could have been solved quite apart from 
a blanket extension of the costal state's sovereignty over the territorial 
sea by expanding the concept of the contiguous zones to include not 
only the limited rights of protection of a coastal state against viola- 
tions of its customs, fiscal, immigration or sanitary regulations, and 
security, but also to provide varying degrees of preferential fishing 
rights, and, in a few cases exclusive fishing rights where the special 
circumstances seem to justify them. 

It is true, of course, that the First Committee of the Conference did 
attempt to solve the coastal fisheries problem, but it did so in a manner 
which kept fisheries tied to the breadth of the territorial sea with the 
result that the proposal was defeated in plenary session. 

The First Committee adopted a special article (Art. 3) as part of 
the articles on the Territorial Sea which provided exclusive fishing 
rights to the coastal state in a 12-mile zone. The proposed article read, 

"A State has a fishing zone contiguous to its territorial sea 
extending to a limit twelve nautical miles from the baseline 
from which the breadth of its territorial sea is measured in 
which it has the same rights in respect of fishing and the ex- 
ploitation of the living resources of the sea as it has in its 
territorial sea." 35 

Ostensibly this proposal has no bearing upon the breadth of the 
territorial sea which, presumably, could have been kept at the present 
three miles or could have been increased to six miles or to some other 
figure. However, the discussions leading up to the adoption of the 
proposal in the First Committee, and to its defeat in the plenary meet- 
ings, make it clear that it was bound inextricably with the question of 
the breadth of the territorial sea. In fact, it was voted upon in the 
fourteenth plenary meeting just prior to the vote on the United States 
compromise proposal for a six-mile territorial sea with exclusive fish- 
ing rights in the outer six miles except for historic rights, and similar 
proposals relating to the breadth of the territorial sea. 36 

The 12-mile exclusive fishing zone article failed to get the necessary 
two-thirds vote in plenary meetings, with 35 votes in favor, 30 against, 



35 U.N. Doc. A/CONF. 13/0. 1/L. 168/Add. 1, Annex (1958) 
86 3 Official Records (A/CONF. 13/38, 39 (1958)). 



94 

and 20 abstentions. 37 From an analysis of the vote one may conclude 
as follows: First, the states in favor of the 12-mile exclusive fishing 
zone were, for the most part, coastal fishing states, such as Canada, 
Iceland, the Philippines, Korea , and a number of Latin American 
states, including all of those which have claimed 200-mile exclusive 
fishing rights off their coasts. 

Second, the states opposing the 12-mile exclusive fishing zone were 
predominantly the overseas fishing states, such as the United States, 
the United Kingdom, Japan, and the Netherlands. As supporters of 
the three-mile limit for the territorial sea, these states were no doubt 
apprehensive that this was a strong entering wedge for the outright 
extension of the territorial sea to 12 miles, as well as being an unwar- 
ranted deprivation of their long-standing fishing rights. 

Third, the states abstaining were predominantly the Soviet bloc. 
Since Russia and her maritime satellites now claim a 12-mile territorial 
sea, which, of course, includes the right of exclusive fishing, they 
apparently saw no reason to vote on the proposal. One could speculate 
as to other possible reasons why the Soviet bloc abstained. A vote 
against the proposal would have put them uncomfortably on the side 
of the United States, the United Kingdom, and other states in the 
Free World bloc. On the other hand, a vote in favor of the 12-mile 
exclusive fishing zone proposal could have been used against them in 
their claims that customary international law supports a 12-mile ter- 
ritorial sea because the wording of the fishing zone article clearly 
implies that the breadth of the territorial sea is something less than 
12 miles. 38 



37 Ibid. The vote in plenary meetings on the 12-mile exclusive fishing zone 
article was as follows : 

For: Afghanistan, Argentina, Burma, Cambodia, Canada, Chile, Colombia, Costa 
Rica, Ecuador, El Salvador, Ghana, Guatemala, Iceland, India, Indonesia, Iran, 
Iraq, Ireland, Jordan, Republic of Korea, Libya, Mexico, Morocco, Nepal, Panama, 
Paraguay, Peru, Philippines, Saudi Arabia, Tunisia, Turkey, United Arab Repub- 
lic, Uruguay, Venezuela, Yugoslavia. 

Against: Australia, Belgium, Bolivia, Brazil, China, Cuba, Dominican Republic, 
France, Federal Republic of Germany, Greece, Haiti, Honduras, Israel, Italy, 
Japan, Luxembourg, Monaco, Netherlands, New Zealand, Nicaragua, Pakistan, 
Poland, Portugal, San Marino, Spain, Sweden, Thailand, Union of South Africa, 
United Kingdom, United States. 

Abstaining: Albania, Austria, Bulgaria, Byelorussian S.S.R., Ceylon, Czech- 
oslovakia, Denmark, Finland, Holy See, Hungary, Laos, Lebanon, Liberia, Federa- 
tion of Malaya, Norway, Romania, Switzerland, Ukrainian S.S.R., U.S.S.R., 
Republic of Viet-Nam. 

38 The fishing zone article adopted by the First Committee provides : "A State 
has a fishing zone contiguous to its territorial sea extending to a limit twelve 
nautical miles from the baseline from which the breadth of its territorial sea 
is measured in which it has the same rights in respect of fishing and the ex- 



95 

C. THE UNITED STATES COMPROMISE PROPOSAL 

Immediately after the defeat of the 12-mile exclusive fishing zone 
proposal, the United States compromise proposal for a six-mile ter- 
ritorial sea with an additional six-mile zone for exclusive fishing ex- 
cept for "historic rights" based upon prior fishing in the area for five 
years was put to a vote. 

Since it came closest (within 7 votes) to adoption of any of the 
compromise proposals, it is desirable to examine it and to analyze the 
vote thereon. 

The United States compromise proposal provided : 

"1. The maximum breadth of the territorial sea of any state 
shall be six miles. 

2. The coastal state shall in a zone having a maximum 
breadth of twelve miles, measured from the applicable base- 
line, determined as provided in these rules, have the same 
rights in respect of fishing and the exploitation of the living 
resources of the sea as it has in its territorial sea ; provided 
that such rights shall be subject to the right of the vessels of 
any state whose vessels have fished regularly in that portion 
of the zone having a continuous baseline and located in the 
same major body of water for the period of five years im- 
mediately preceding the signature of this Convention, to fish 
in the outer six miles of that portion of the zone, under obliga- 
tion to observe therein such conservation regulations as are 
consistent with rules on fisheries adopted by this Conference 
and other rules of international law. 

3. Any dispute with respect to the interpretation or 
application of this article shall, at the request of any party 
to the dispute, be submitted to arbitration unless the parties 

- agree to another method of peaceful solution. 

4. For the purposes of this Convention the term 'mile' 
means a nautical mile (which is 1,852 meters), reckoned at 
sixty to one degree of latitude. 

5. As respects the parties thereto, the provisions of para- 
graph 2 of this article shall be subject to such bilateral or 
multilateral arrangements, if any, as may exist or be entered 
into. 



ploitation of the living resources of the sea as it has in its territorial sea" 
(A/CONF. 13/C. 1/L. 168/Add. 1, Annex (Emphasis added) ). If the territorial 
sea, which includes the right of exclusive fishing, were not to be considered less 
than twelve miles, then there would be no need to provide for an exclusive fish- 
ing zone of 12 miles. Hence, the article clearly implies that the territorial sea 
is considered to be somewhat less than the 12-mile fishing zone. 



96 

Note : It is proposed that this article be entered into with 
the express understanding that each party to the Convention 
undertakes to consider sympathetically the request of another 
party to consult on the question of whether the rights granted 
by this article are being exercised in such manner as to work 
an inequity upon one or more of the other parties and, if so, 
what measures should and can be taken to remedy the 
situation." 39 
The proposal received the following votes : 
For (45): 

Australia, Austria, Belgium, Bolivia, Brazil, Cambodia, Ceylon, 
China, Cuba, Denmark, Dominican Republic, France, Germany, 
Ghana, Greece, Haiti, Holy See, Honduras, India, Iran, Ireland, 
Israel, Italy, Laos, Liberia, Luxembourg, Malaya, Monaco, 
Netherlands, New Zealand, Nicaragua, Norway, Pakistan, 
Paraguay, Portugal, San Marino, Spain, Sweden, Switzerland, 
Thailand, Turkey, Union of South Africa, United Kingdom, 
United States, Viet-Nam. 
Against (33) : 

Albania, Argentina, Bulgaria, Burma, Byelorussia, Canada, 
Chile, Colombia, Czechoslovakia, Ecuador, El Salvador, 
Guatemala, Hungary, Iceland, Indonesia, Jordan, Korea, 
Lebanon, Libya, Mexico, Morocco, Panama, Peru, Poland, 
Rumania, Saudi Arabia, Tunisia, Ukraine, U.S.S.R., U.A.R., 
Uruguay, Venezuela, Yugoslavia. 
Abstain (7) : 

Afghanistan, Costa Rica, Finland, Iraq, Japan, Nepal, 
Philippines. 
States voting against the United States compromise proposal may be 
divided into five general categories. The figure or information in 
parentheses indicates the claim to territorial sea and in some cases the 
special limits claimed for fishing. 40 
SOVIET BLOC. ( 10 votes) : 
Albania (10) 
Bulgaria (12) 

Byelorussia (none specified but a Soviet Union republic) 
Czechoslovakia (not specified but dominated by U.S.S.R. even 

though technically an independent state) 
Hungary (12) 



39 U.N. Doc. A/CONF. 13/C. 1/L. 159/Rev. 2. 

40 This information is based upon the U.N. Synoptical Table (APPENDIX K) 
and the summary prepared by Professor Sorensen in Sorensen, op. cit., footnote 
17 (at 244). 



97 

Poland (3 in 1940, but dominated by U.S.S.R. even though tech- 
nically an independent state) 

Romania (12) 

Ukraine (none specified but a Soviet Union republic) 

U.S.S.R. (12) 

Yugoslavia (6, plus 10 miles for fishing) 
This so-called Soviet bloc includes a variety of bedfellows. On 

the one hand, Byelorussia and Ukraine are Soviet Union republics 

and hence actual farts of the U.S.S.E. The Soviet Constitution 

requires that their foreign policy be coordinated by Moscow. The 

others are technically independent states, but their foreign policy 

and internal affairs are dominated in varying degrees by the 

U.S.S.R. 
LATIN AMERICAN STATES ( 11 votes) : 

Argentina (sea above continental shelf, limit unspecified) 

Chile (200) 

Colombia (6 in 1930) 

Ecuador (36) (claim is only 12 miles but reckoned at 20-to-l, 
which is three times usual nautical mile) 

El Salvador (200) 

Guatemala (12) 

Mexico (9) 

Panama (sea above continental shelf, limit unspecified) 

Peru (200) 

Uruguay (6) 

Venezuela (12) 
ARAB STATES (T votes) : 

Jordan (3 in 1956) 

Lebanon (6, fishing only) 
, Libya (12) 

Morocco (6, fishing only) 

Saudi Arabia (12) 

Tunisia (3, but special limit for fishing to depth of 50 meters) 

United Arab Republic (12) 
ASIATIC STATES (3 votes) : 

Burma (none specified) 

Indonesia (12) 

Korea (50-60 for fishing) 
OTHERS (2 votes) : 

Canada (3, with special limit of 12 claimed for fishing) 

Iceland (4 in 1935 for fishing only, now claims 12) 

If one attempts to analyze the votes of these five groups of states 
against the United States compromise proposal in order to appraise 



98 

the prospects of achieving a favorable two-thirds vote on the same or 
a similar proposal at a future Conference the results are far from 
encouraging. 

With respect to the Russian bloc of 10 votes, since all of these states 
except Yugoslavia are either committed to a 12-mile territorial sea 
or so dominated by the U.S.S.R. that they dare not vote for anything 
else, it is not likely that any of these votes will change. 

It is true that Yugoslavia under Marshal Tito has shown consider- 
able independence from Soviet domination. However, while she 
claims a territorial sea of only six miles as compared with the 12-mile 
claim of most of the Soviet bloc, she has claimed an exclusive fishing 
zone of 10 miles since 1950 primarily to exclude Italians from fishing 
near the Yugoslav shores in the upper Adriatic Sea where the fishery 
resources close to the Yugoslav coast are much richer than those on 
the Italian side. Of course, if the question of the breadth of the terri- 
torial sea could be divorced from the question of coastal fisheries, it is 
barely possible that Yugoslavia might vote for a six-mile territorial 
sea, which she herself now proclaims. 

Of the eleven Latin American States voting against the United 
States compromise proposal for a six-mile territorial sea, ony two — 
Colombia and Uruguay — claim as little as six miles. 41 All of the 
others claim twelve to two hundred miles except Mexico, which claims 
nine miles. 42 Colombia's claim to a six-mile territorial sea goes back 
to 1930, but she has also claimed a 12-mile fishing zone for much longer 
(since 1923 ). 43 

Eleven Latin American States voted for the 12-mile fishing zone in 
the plenary meetings, 44 even though the proposal failed to get the req- 
uisite two-thirds majority, indicating their strong desire for a mini- 
mum exclusive fishing zone of at least that distance. In addition 
three of these Latin American States — Colombia, Mexico and Vene- 
zuela — joined with five other states in what came to be known as the 
eight-power proposal which would have permitted a coastal state to 
fix the territorial sea up to twelve miles and which would have granted 
exclusive fishing rights of twelve miles even though the territorial 
sea might be proclaimed at less than that distance. 45 This proposal 
lost in plenary meetings by a vote of 39 in favor, 38 against, with 8 ab- 
stentions. 46 



11 U.N. Doc. A/CONF. 13/C. 1/L. 11 (1958), (APPENDIX K) 

12 Ibid. 

13 Ibid. 

14 2 Official Records (A/CONF. 13/38, 39 (1958) ). 

15 Ibid., at 128 

16 Ibid., at 40. 



99 

It should be emphasized that, although these eleven Latin American 
States voted against the United States compromise proposal, as did 
the Soviet bloc, they were not in any sense subservient to or dominated 
by the Soviet bloc. On the contrary, when the Soviet proposal, which 
would have granted each state the right to establish a territorial sea 
"within the limits, as a rule, of three to twelve miles" with no reference 
to exclusive fisheries rights, 47 was voted on in the plenary meeting 
shortly after the defeat of the United States compromise proposal, all 
but three of these eleven Latin American states voted in the negative. 
Chile, Ecuador and Peru, principal claimants of a 200-mile territorial 
sea, voted in favor of the Soviet proposal which was resoundingly de- 
feated by 21 in favor, 47 against with 17 abstentions. 48 However, the 
vote of these three Latin American states was not so much a vote in 
favor of the Soviet proposal as it was an affirmation of the position 
which they have maintained for several years and which they enunci- 
ated again in a three-party declaration near the end of the conference 
for "the establishment and extension of a more just regime of the sea 
that will safeguard effectively the recognized special right of the 
coastal States to defend their economy and the livelihood of their 
populations." 4& 

With one or two possible exceptions, it is doubtful that any of these 
eleven Latin American States will change their 1958 votes and in the 
future either abstain from voting or vote in favor of a territorial sea 
of six miles or less. Again, however, it should be emphasized that if 
the coastal fisheries question could be settled separately from the ter- 
ritorial sea question, it might be possible that several of these states 
would vote for a narrow territorial sea of six miles or less. For ex- 
ample, the Argentine delegate indicated that his country had voted 
in First Committee for a six-mile territorial sea in the hope that a 
uniform international rule would result, but that Argentina felt com- 
pelled to vote against the United States proposal because of its pro- 
visions reserving historic fishing rights in the outer six miles. 50 

In the case of the seven Arab States which voted against the United 
States proposal, the previous tabulation indicates that three now claim 
a territorial sea of 12 miles, two claim six miles (for fishing only), and 
two claim three miles. While there were undoubtedly a number of 
reasons why these seven states voted as they did, it seems safe to say 
that one of the principal reasons was to prevent Israel from having an 
outlet to the "high seas" of the Gulf of Aqaba. Since the Gulf is only 
about fifteen miles at its widest point, a claim by the littoral Arab states 

47 Ibid,, at 126. 

48 Ibid., at 40. 

49 Ibid., at 132. 

50 Ibid., at 42. 



100 

to territorial seas of 12 miles (or even to nine miles) would mean that 
Israel, located at the narrow head of the Bay, would have to traverse 
the territorial seas of Arab states for more than 100 miles from her 
own port of Elath to reach the high seas of the Red Sea. 51 

While it is true that Israel would have the right of innocent passage 
from her port through the territorial seas of the Arab States under 
Article 14 of the Convention on the Territorial Sea and the Contig- 
uous Zone, 52 it would be possible for the Arab States to hinder or even 
deny such passage to Israeli ships on the ground that such passage 
was not innocent but "prejudicial to the peace, good order or security 
of the coastal State." 53 

Because of the particular interests of these Arab states in relation 
to Israel, coupled with the desire of most of them to extend their terri- 
torial seas in order to achieve additional exclusive fishing rights at 
least up to twelve miles, 54 it is difficult to imagine that more than one 
or possibly two will soon change their votes from negative to affirma- 
tive on a proposal calling for a territorial sea of six miles or less. 

One slender reed of encouragement in the case of Lebanon, which 
claims a six-mile territorial sea for fishing only, is the fact that after 
voting against the United States compromise proposal, she also voted 
against the Soviet proposal 55 which in effect approved the unilateral 
establishment of a 12-mile territorial sea. Moreover, Lebanon 
abstained when it came to voting on the 12-mile exclusive fishing zone 
article. These facts suggest the possibility that Lebanon might be 

51 Of course, Saudi Arabia has taken the position that the Gulf of Aqaba is a 
national inland waterway, subject to absolute Arab sovereignty. General As- 
sembly, 12th Sess. Official Records, 697 Plenary Meeting (A/P-V. 697, 233) (Oct. 
2, 1957). If this position were to prevail, which seems unlikely in view of the 
substantial views to the contrary, it would be possible for the Arab States to 
prevent Israel's access to the high seas of the Red Sea without extending their 
territorial seas. See Selak, "A Consideration of the Legal Status of the Gulf of 
Aqaba," 52 A.J.I.L. 660 (1958). 

52 U.N. Doc. A/CONF. 13/L. 52, Art. 14(2) (1958). This article provides: 
"Passage means navigation through the territorial sea for the purpose either of 
traversing that sea without entering internal waters, or of proceeding to internal 
waters, or of making for the high seas from internal waters." 

63 Ibid., Art 14(4). 

54 Six of the seven Arab States voted in favor of the 12-mile exclusive fishing 
zone, and the seventh (Lebanon) abstained. 2 Official Records (A/CONF. 13/38, 
39 (1958)). 

55 2 Official Records (A/CONF. 13/38, 40 (1958) ). The exact language of the 
Soviet proposal relative to Article 3 was : "Each State shall determine the breadth 
of its territorial waters in accordance with established practice within the limits, 
as a rule, of three to twelve miles, having regard to historical and geographical 
conditions, economic interests, the interests of the security of the coastal State 
and the interests of international navigation." U.N. Doc. A/CONF. 13/L. 30 
(1958). 



101 

persuaded to vote for a 6-mile territorial sea which, of course, would 
include exclusive fishing in said area, consistent with her present uni- 
lateral claim of that distance, if proposals relative to exclusive fish- 
ing rights beyond a six-mile territorial sea were treated separately. 

The three Asiatic States voting against the United States com- 
promise proposal — Burma, Indonesia, and Korea — all appear to favor 
a territorial sea of 12 miles or more, primarily because of strong inter- 
ests in securing exclusive fishing rights up to this distance or beyond. 
All three voted in favor of the 12-mile exclusive fishing zone article 
which was adopted by the First Committee. 56 Moreover, two of the 
three (Burma and Indonesia) voted in favor of the Soviet proposal 
which, as previously indicated, would have approved unilateral claims 
to a territorial sea up to twelve miles, thus establishing this figure as 
the breadth. 

Korea voted against the Soviet proposal, as might have been 
predicted in view of her claim in 1952 to broad exclusive fisheries zones 
off her coasts and sovereignty over the continental shelf and super- 
jacent waters to a distance of fifty to sixty miles from shore, despite 
assertions that the claim did not effect an extension of the territorial 
sea. 57 Since Japan, with one of the largest fishing fleets in the world, 
has long maintained that the three-mile territorial sea is a firmly 
established principle of international law, the claims of Korea to 
exclusive fishing for the distances claimed have put the two states in 
direct conflict. 

Here again, if Burma, Indonesia and Korea are to be persuaded to 
vote for a territorial sea of six miles or less, the coastal fisheries 
problem will have to be resolved. 

With respect to Iceland, again we find a close linkage of the ter- 
ritorial sea breadth and the coastal fisheries problem. Although for 
approximately two centuries (from 1662 to 1859) Iceland claimed 
exclusive fishery limits of 16 miles, in 1901 the Danish and British 
Governments entered into an agreement specifying three miles for 
fisheries and 10 miles for bays. 58 At the Hague Conference in 1930 
the delegate from Iceland in an informal expression of views as to 
the proper breadth of the territorial sea supported four miles. 59 In 
1952 Iceland formally extended her territorial sea for exclusive fish- 
ing to four miles, 60 although she has argued in favor of the right to 



58 U.N. Doc. A/CONF. 13/C. 1/L. 168/Add. 1, Annex. 
67 MacChesney, op. cit., footnote 23 at 466) . 



68 Ibid., at 466. Also see comments of Iceland to the International Law 
Commission, U.N. Doc. A/CN. 4/99/Add. 2, 8. 

69 Francois, "Report of the Second Committee (Territorial Sea)" 24 A.J.I.L. 
Supp., ANNEX III 253 (1930) . 

*° MacChesney, op. cit., footnote 23 (at 466) . 



102 

much greater exclusive fishing in the superjacent waters of her con- 
tinental shelf. 61 The 1952 claim to four miles brought a prompt 
protest from the United Kingdom, including the closing of British 
ports to the landing of fish from Icelandic trawlers. 62 

Shortly after the Geneva Conference of 1958 failed to reach agree- 
ment on the breadth of the territorial sea, Iceland extended her claim 
of exclusive fishing rights to twelve miles, without extending her ter- 
ritorial sea as such. This claim met with widespread protest, includ- 
ing that of the United Kingdom which began protecting her trawlers 
with naval ships between the four and twelve-mile limits. 63 

The coastal fisheries problem of Iceland is unique in that fishing is 
such an important part of her economy, more so than in any other 
state. Fish constitutes 14% of her total domestic production and 96% 
of her total exports. 64 These facts, together with the evidence of over- 
fishing off Iceland's coasts, 65 suggest not only the need for conserva- 
tion measures as provided in the Geneva Convention on Fishing and 
Conservation of the Living Resources of the High Seas, 66 but also 
the possible need to grant Iceland preferential, or perhaps even exclu- 
sive, fishing rights in a limited area of high seas adjacent to her coasts. 

At the 1958 Conference Iceland introduced the following proposal 
to take care of her special circumstances : 

"In exceptional circumstances, where a people is primarily 
dependent on its coastal fisheries for its livelihood and/or 
economic development, the State concerned has the right to 
exercise exclusive jurisdiction over the fisheries up to the 
necessary distance from the coast in view of relevant local 
considerations." 67 

In the comment which followed this proposal it was suggested by 
Iceland that a zone of twelve miles would go a long way toward taking 
care of her requirements but that it might be necessary to have an 



81 II Veroatin Record (A/CONF. 13/19, 301-303 (1957)). In 1948 Iceland 
passed a law providing for the scientific conservation of her continental shelf 
fisheries. 1 U.N. Leg. Series 12 (1951). 

62 Sorensen, op. eit., footnote 17 (at 251) . 

63 For the exchange of notes between the Icelandic and British Governments 
regarding the 12-mile claim of Iceland, see Lauterpacht, "The Contemporary 
Practice of the United Kingdom in the Field of International Law — Survey and 
Comment," 8 International and Comparative Law Quarterly 175-181 (1959). 

04 U.N. Prep. Doc. No. 13, "The Economic Importance of the Sea Fisheries in 
Different Countries," A/CONF. 13/16, 3, 9 (1957). 

65 For a recent comment see New York Times, Nov. 8, 1959, p. 12, col. 1. 

66 U.N. Doc. A/CONF. 13/L. 54 and Add. 1 (1958). 

67 3 Official Records (A/CONF. 13/39, 246 (1958) ) . 



103 

additional zone beyond twelve miles in which Iceland would have 
priority rights. 68 

Although the Iceland proposal has considerable merit because of the 
importance of fishing to her total economy, it failed to win approval 
at the Conference. However, the Convention on Fishing and Conser- 
vation of the Living Resources of the High Seas did recognize that the 
coastal state has a special interest in the maintenance of the produc- 
tivity of the living resources in any area of the high seas adjacent to 
its territorial sea, 69 and may adopt unilateral measures of conservation 
under certain circumstances. 70 The Convention also provides for 
compulsory settlement of disputes which arise over fishing and 
conservation. 71 

Although Iceland voted against the United States compromise pro- 
posal of a six-mile territorial sea, 72 she did so primarily because of her 
objection to the provision for "historic fishing rights" in the outer 
six miles of a twelve-mile zone. Iceland wants a 12-mile zone of ex- 
clusive fisheries, nothing less. She voted in favor of the 12-mile ex- 
clusive fishing provision (Art. 3) of the First Committee, 73 and also 
for the Soviet compromise proposal granting approval of a territorial 
sea up to 12 miles. 74 

Yet, Iceland has indicated that she would not press for an extension 
of the territorial sea beyond three miles, provided she could secure ex- 
clusive fishing rights in a twelve-mile zone. 75 Hence, it may be possible 
to win Iceland's vote for a narrow territorial sea of six miles or less 
if the coastal fisheries problem can be resolved separately. 

The same is true of Canada whose interest in as narrow a territorial 
sea as possible, preferably three miles, has been referred to above. But 
Canada, like Iceland, wants a 12-mile exclusive fishing zone, 76 even 
though the relative importance of fisheries to Canada's total economy 
is far less than in the case of Iceland. Canada's sea fishery landings 



68 Ibid. 

69 U.N. Doc. A/CONF. 13/L. 54 and Add 1, Art. 6 (1958) . 

70 Ibid., at Art. 7. 

71 Ibid., at Art. 9. 

72 2 Official Records (A/CONF. 13/38, 39 (1958) ). 

73 Ibid. 

74 Ibid., at 40. 

75 3 Official Records (A/CONF. 13/39, 185 (1958) ). 

76 Hamilton, "Report on Law of the Sea Conference" (Statement in the Cana- 
dian House of Commons, July 25, 1958), External Affairs, No. 8, 195 (August 
1958). Hamilton said in part, ". . . [I]n the final analysis the central issue 
before the Conference was not whether there should be a fishing zone but 
whether it should be subject to existing traditional rights as proposed by the 
United States or whether it should be exclusive and without impediment as pro- 
posed by Canada." ■ 



104 

are less than one per cent of her aggregate domestic product, and only 
three per cent of her total exports. 77 

Here again it seems safe to assert that if the coastal fisheries ques- 
tion could be resolved separately from the question of the territorial 
sea breadth, Canada would favor a three-mile limit or be willing to 
compromise on a six-mile limit. 

Having analyzed briefly the vote of the 33 states which opposed the 
United States proposal to see whether and under what circumstances 
some of these states might be persuaded to vote at the 1960 Conference 
for a narrow territorial sea of six miles or less, we turn now to a sum- 
mary consideration of the seven states which abstained from voting — 
Afghanistan, Costa Rica, Finland, Iraq, Japan, Nepal, and the Phil- 
ippines. 

It will be observed that two of these states are land-locked — Af- 
ghanistan and Nepal. Notwithstanding this fact, they have as great 
an interest in the maximum freedom of the seas as do coastal states, 
an interest which was recognized in a number of ways at the Confer- 
ence. For example, a separate committee was established to study 
the question of free access to the sea of land-locked countries, 78 and in 
the Convention on the High Seas the list of freedoms is explicitly made 
applicable both for coastal and non-coastal States. 19 

Although the immediate and paramount interest of land-locked 
states tends to center on the matter of overland access through neigh- 
boring states to the sea, the representative of Afghanistan appropri- 
ately formulated the broad perspective when he said, 

"Our life today is interdependent, and all nations whether 
maritime or land-locked have built their economic life in such 
a way that through the sea they obtain their urgent needs and 
requirements. No land-locked country can live alone and be 
self-sufficient without relying on sea transportation." 80 

Because of the interest of Afghanistan and Nepal as land-locked 
states in the maximum freedom of the seas, if other considerations such 
as the fear of offending dominant neighboring states which were op- 
posed to the United States proposal could be neutralized, it seems 
likely that such states could be persuaded to vote for a narrow terri- 
torial sea, despite the fact that some of these states have indicated 
a "cautious attitude" toward the question. 8 



81 



" U.N. Prep. Doc. No. 13 (A/CONF. 13/16, 2, 6 (1958) ). 

78 7 Official Records (A/CONF. 13/43 (1958)). 

79 U.N. Doc. A/CONF. 13/L. 53 and corr. 1 (1958) . 

80 1 Verbatim Record (A/CONF. 13/19, 513 (1957) ). 

81 See statement of the delegate from Nepal in the First Committee 3 Official 
Records (A/CONF. 13/39, 186 (1958) ). 



105 

Of the five other abstaining states, Japan has long been an advocate 
of a three-mile territorial sea because of her overriding interest in the 
maximum freedom of the high seas both for navigation and fishing. 
Although Japan abstained from voting on the United States proposal, 
she did show her willingness to compromise her long-standing ad- 
herence to the three-mile limit by voting in the First Committee for 
the first half of the Canadian proposal to establish a six-mile limit. 82 
But, she voted against the second half of the Canadian proposal which 
would have provided exclusive fishing rights in the outer six miles of 
a 12-mile zone. Despite her desire to support the United States in 
her efforts to achieve agreement on the narrowest possible territorial 
sea, Japan abstained on the United States proposal because she could 
not vote for that part which provided exclusive fishing to the coastal 
state in the outer six miles of a 12-mile zone except for "historic rights" 
based upon five years of prior fishing. This provision meant that Ja- 
pan, and other overseas fishing states, would be forever precluded from 
fishing in these exclusive, outer-six-mile zones if they had not fished 
there recently (i.e., within the past five years), a crippling prohibition 
to Japan's large and vital fishing interests. 

Finland has a territorial sea of four miles, a limit which she has 
favored for many years. 83 It is not easy to account for her abstention 
on the United States proposal although one may note her consistency 
in abstaining on most of the proposals regarding breadth of the terri- 
torial sea. She did so in the First Committee on both parts of the 
Canadian proposal, 84 and in the plenary meetings on the 12-mile exclu- 
sive fishing zone, 85 the eight-power proposal, 86 and the Soviet pro- 
posal. 87 The Scylla and Charybdis for Finland may well be her friend- 
ship for the United States on the one hand and her physical proximity 
to the Soviet Union on the other. Under these circumstances, the 
safest prediction as to her vote on this issue is another abstention, with 
an outside chance for a vote in favor of a narrow territorial sea of six 
miles or less. 

Costa Eica, also abstaining on the United States proposal, has fol- 
lowed the lead of Chile, Ecuador and Peru in claiming a maritime zone 



82 3 Official Records (A/CONF. 13/39, 176 (1958) ) . 

83 Finland indicated a preference for a four-mile limit at the Hague Conference 
of 1930 but expressed a willingness to vote for three with the recognition of a 
contiguous zone. Reeves, op. cit., footnote 11 (at 486, 499) . 

^3 Official Records (A/CONF. 13/39, 176, 177 (1958) ). 
85 2 Official Records (A/CONF. 13/38, 39 (1958)). 
88 Ibid., at 40. 
87 Ibid. 

607631—61 8 



106 

of 200 miles, 88 but has emphasized that this claim in no way implies 
an assertion of a territorial sea of that distance. 89 Moreover, during 
the Conference she did not vote consistently with those three coun- 
tries. For example, although she voted with them in favor of the 
12-mile exclusive fishing zone, 90 she was opposed to them in voting 
against the Soviet proposal authorizing coastal states to establish a 
territorial sea at any distance between three and twelve miles. 91 

Costa Rica has described a territorial sea of three miles as an 
"anachronism consistent neither with the advances of modern tech- 
nique nor with methods of exploiting marine resources which have 
been employed in the modern world." 92 That the control of coastal 
fisheries resources is one of the major concerns of Costa Rica, rather 
than the breadth of the territorial sea as such, is indicated by the 
following assertion : 

"What the Government of Costa Rica wants is to secure 
the recognition of its competence and jurisdiction to regulate 
and control the manner in which the living resources of the 
sea are exploited in the maritime zones adjacent to its coasts, 
lest the abusive exploitation of these resources lead to their 
depletion or exhaustion. We consider that Costa Rica, as a 
coastal State, has a prior interest in these resources . . . ." 93 
Thus, the Costa Rica position suggests that if the coastal fisheries 
problem can be resolved separately, she might be persuaded to vote for 
a territorial sea of six miles or less. 

Iraq has claimed a territorial sea in accordance with international 
law without specifying a breadth. Since she voted against the first part 
of the Canadian proposal to establish a territorial sea of six miles, 94 and 
voted for the eight-power proposal, 95 as well as the Soviet proposal, 96 
both of which would have permitted the establishment of a 12-mile 
territorial sea, perhaps the most that can be hoped for in a future con- 
ference is her abstention on the establishment of a territorial sea of six 
miles or less, with the remote possibility of a vote for such a proposal. 
The Philippines, the last of the seven states abstaining on the United 
States compromise proposal for a six-mile territorial sea, claims that 

88 For a summary statement of the developments in Costa Rica which indicate 
that the situation with respect to her exact claims in regard to territorial sea and 
Ashing zones is not at all clear, see MacChesney, op. cit., footnote 23. (at 451) . 

89 1 Verbatim Record (A/CONF. 13/19, 468 (1957) ). 

90 2 Official Records (A/CONF. 13/38, 39 (1958)). 

81 Ibid., at 40 

92 2 Verbatim Record (A/CONF. 13/19, 469 (1957) ). 

83 Ibid., at 470. 

94 3 Official Records (A/CONF. 13/39, 176 (1958) ). 

85 2 Official Records (A/CONF. 13/38, 39 (1958) ). 

88 Ibid., at 40. 



107 

the position of archipelagic nations calls for special treatment. She 
introduced a proposal in the First Committee which would have ap- 
plied the method of straight baselines to archipelagos, as well as to 
coasts which are deeply indented, 97 by permitting the drawing of base- 
lines along the coast of the outermost islands, following the general 
configuration of the group, where the islands are sufficiently close to 
one another as to form a compact whole and have been historically 
considered collectively as a single unit. 98 

The general statements of the Philippine representative in the Gen- 
eral Assembly prior to the Conference to the effect that security and 
economic reasons warrant an extension of the territorial sea, 99 and her 
vote against the first part of the Canadian proposal to establish a six- 
mile territorial sea 10 ° and in favor of the 12-mile exclusive fishing zone 
proposal, 101 all seem to suggest that the Philippines cannot be per- 
suaded to vote for a narrow territorial sea of six miles or less unless 
the coastal fishing problem is settled separately. 

D. SEPARATION OF DELIMITATION OF TERRITORIAL SEA 
FROM COASTAL FISHERIES PROBLEM 

Suppose the question of the delimitation of the territorial sea 
were separated from the question of coastal fisheries, is it likely that 
the necessary two-thirds vote could be secured in a future conference 
on a six-mile or narrower limit ? 

This is a difficult question to answer. One might hastily conclude 
that agreement on as narrow a limit as six miles, quite apart from the 
coastal fisheries question, is doubtful on the basis of the vote in the 
First Committee of the 1958 Conference when the first part of the 
revised Canadian proposal calling for a six-mile territorial sea was 
resoundingly defeated with only 11 votes in favor, 48 against, with 23 
abstentions. 102 

Yet it should be stressed that the vote on this part of the Canadian 
proposal in 1958 was not at all indicative of the general sentiment 
of a majority of the states towards compromising on a six-mile ter- 
ritorial sea as demonstrated later in the Conference when the United 
States proposal which, like the Canadian proposal, also embodied a 
six-mile territorial sea, came within seven votes of achieving the 
necessary two-thirds majority. Nor is the vote on the first part of the 



97 U.N. Doc. A/CONF. 13/L. 52, Art. (4) (1) (1958). 

98 U.N. Doc. A/CONF. 13/C. 1/L. 98 (1958). This proposal was withdrawn 
without being voted upon. 3 Official Records (A/CONF. 13/39, 148 (1958) ). 

99 1 Verbatim Record (A/CONF. 13/19, 218 (1958) ). 
100 3 Official Records (A/CONF. 13/39, 176 (1958) ). 
101 2 Official Records (A/CONF. 13/38, 39 (1958) ). 
103 3 Official Records (A/CONF. 13/39, 177 (1958) ). 



108 

Canadian proposal in 1958 necessarily indicative of what a future 
Conference might vote on a similar delimination of the territorial sea, 
especially if the states can be persuaded to treat the matter of delimita- 
tion separately from the coastal fisheries problem. 

The problem is really two-fold: (1) whether the states will be 
disposed to decide the question of the breadth of the territorial sea 
separately from the question of coastal fisheries; and (2) whether 
they will agree on a territorial sea of six miles, or less, without first 
having arrived at an agreement on the extent of preferential and/or 
exclusive fishing rights to be granted to the coastal state in a con- 
tiguous zone beyond the territorial sea. 

With respect to the second problem, which is the more difficult, the 
delegate from Iceland probably expressed the views of a number of 
states when he indicated that his delegation had voted against the 
first part of the Canadian proposal to establish a six-mile territorial 
sea because at that stage in the Conference the coastal state's exclusive 
fishing rights up to twelve miles had not yet been voted upon, 103 in- 
dicating an insistence on the settlement of the coastal fisheries problem 
first. 

Since it is felt by many states that the easiest way to get additional 
exclusive fishing rights is to claim an extension of the territorial sea, 
notwithstanding a general recognition of the validity of the pronounce- 
ment in the Anglo-Norwegian Fisheries Case that "the delimitation 
of sea areas has always an international aspect ; it cannot be dependent 
merely upon the will of the coastal State as expressed in its municipal 
law," 104 there is a reluctance to agree upon a narrow territorial sea 
of six miles or less without first knowing at least what the general pat- 
tern of agreement is likely to be with respect to preferential or ex- 
clusive coastal fishing rights. Some states, such as Iceland, appear to 
demand a specific agreement guaranteeing exclusive fishing to the 
coastal state, prior to a determination of the delimitation of the ter- 
ritorial sea. 

Relative to the first problem above of separating the question of the 
breadth of the territorial sea from the question of coastal fisheries, Mr. 
Dean, head of the United States delegation, vigorously opposed a 
Canadian motion that the United States proposal be voted on in two 
parts, as had been done with the Canadian proposal. He said that 
the United States delegation was not prepared to support any proposal 
establishing the breadth of the territorial sea at six miles unless it 

103 IUd., at 185. 

104 I.G.J. Reports, 132 (1951). The Court went on to say, "Although it is true 
that the act of delimitation is necessarily a unilateral act, because only the 
coastal State is competent to undertake it, the validity of the delimitation with 
regard to other States depends upon international law." 



109 

included the other essential elements of the proposal 105 (i.e., inclusion 
of the "historic rights" provision to insure that the United States and 
other overseas fishing states could continue to fish in the outer six-mile 
"exclusive" zone) . Dean's position undoubtedly reflected the pressures 
of certain influential fishing interests, both in the United States and 
in other states. 

Thus, the voting on the separate question of a six-mile territorial sea 
was taken on the Canadian proposal in the First Committee at a time 
when the United States, one of the leading exponents later in the Con- 
ference of a compromise at six miles, and several other states were un- 
willing to consider the breadth of the territorial sea apart from the 
coastal fisheries question. In the interest of achieving the narrowest 
possible territorial sea it is hoped that the United States and other 
states may change their views on this matter. Therein lies the only 
hope of avoiding another deadlock such as the one which developed in 
the 1958 Conference. 

Assuming that a significant number of states will be unwilling to 
commit themselves to a narrow territorial sea of six miles or less 
without first having some assurance that their demands for preferen- 
tial and/or exclusive fishing rights in an area beyond a narrow terri- 
torial sea will be recognized, (an assumption which seems warranted 
in light of the 1958 Conference record), what form might this as- 
surance take without the danger of reaching an impasse over specific 
details ? 

E. SUGGESTED PRINCIPLES FOR HIGH SEAS AND COASTAL 
FISHERIES 

It is suggested that agreement might be had upon a general state- 
ment of three complementary principles with respect to high seas and 
coastal fisheries, prior to and quite apart from any discussion of the 
delimitation of the territorial sea. These principles are as follows : 

1. Principle I: Basic Right to Fish on the High Seas 

All states have the right for their nationals to engage in fishing on 
the high seas, subject (a) to their treaty obligations and (b) to prin- 
ciples which have as their purpose the recognition of the special rights 
of coastal states to preferential or exclusive fishing rights in limited 
areas of the high seas adjacent to their coasts beyond the territorial 
sea. 

Commentary 

This first principle recognizes the freedom of high seas fishing as a 
basic, traditional right. It has been incorporated in the provisions of 

103 3 Official Records (A/CONF. 13/39, 179 (1958) ). 



110 

Article 2 of the Convention on the High Seas 106 and Article 1 of the 
Convention on Fishing and Conservation of the Living Resources of 
the High Seas. 107 

In the principles which follow, it will be seen that this basic, first 
principle, long-recognized in International Law, is not absolute but 
is subject to certain limitations in order to recognize the desirability 
of providing coastal states with (a) preferential fishing rights in 
limited areas of the high seas adjacent to their coasts and (b) exclusive 
fishing rights in still narrower areas in those exceptional cases in which 
the coastal state is primarily dependent upon its coastal fisheries for 
its economic livelihood. 

2. Principle II: Preferential Fishing Rights for Coastal States 
in Limited Areas 

All coastal states have the right for their nationals to engage in fish- 
ing in limited areas of the high seas adjacent to their coasts on a 
preferential basis subject to the "historic rights" of overseas states 
which have fished in such areas during a designated period immedi- 
ately preceding the effective date of a Convention on Coastal 
Fisheries. 



The purpose of this second principle is to accord to the coastal state 
a preference to fish in a limited area of the high seas adjacent to its 
coast while at the same time balancing this preferential treatment with 
Principle I which recognizes the traditional rights of all states to fish 
in the high seas. The preferential fishing zone contemplated under 
this principle would accord overseas fishing states the right to con- 
tinue fishing for the same classes of fish up to an amount not exceed- 
ing the average annual catch over a designated prior period of, say, 
five or ten years. 

In the formulation of the principle of preferential fishing rights 
for the coastal state, with due provision for the "historic rights" of 
overseas states, it is unnecessary to incorporate within the principle 
itself an exact period of time (i.e., 5 years, 10 years, etc.) as the basis 
for determining which states have fished in an area sufficiently long 
to have established an "historic right" to continue fishing there, and 
for calculating the average annual catch which the overseas state may 
not exceed in the future. The details of the time period can be resolved 
by agreement later; the first and most important step is to establish 
the broad principle. 



106 U.N. Doc. A/CONF. 13/L. 53 and corr. 1 (1958) . 

107 U.N. Doc. A/CONF. 13/L. 54 and Add. 1 (1958) . 



Ill 

However, three comments may be of some help in the future in 
determining what the time period should be, assuming that a time 
period is used as the basis for establishing "historic rights." 108 

First, it is felt that the period should not be shorter than five years 
because a state which has fished in a given area for less than that length 
of time can hardly be said to have established "historic fishing rights" 
therein. Secondly, since the facts may show that overseas states do not 
fish regularly each year in a given area, it may be that the following 
type of formula would be fairer : "historic fishing rights" shall be ac- 
corded to any state which has fished in a given coastal area for a cer- 
tain stock, or stocks, of fish during any five (or seven or eight) years 
out of the past ten (or twelve or fifteen). Thirdly, it may be some- 
what indicative of the favorable attitude of many states toward the 
five-year criterion on this question of "historic rights" to remember 
that the United States compromise proposal at the Geneva Conference 
in 1958, which came within seven votes of adoption, contained a five- 
year period as the basis for determining "historic rights." In an 
earlier proposal at the Conference, the United States had suggested a 
ten-year period. 

Whereas in the high seas beyond the preferential fishing zone adja- 
cent to the coasts all states would have equal fishing rights, except to 
the extent that they may have agreed otherwise under conservation 
treaties, within the preferential fishing zone the overseas states would 
have more limited rights and yet would not be subject to complete ex- 
clusion by the coastal state as would be the case under Principle III 
below. 

The principle of preferential fishing rights would make it possible 
for the coastal state to increase its catch over the years as the fishing 
stocks increased, but the overseas fishing state would be restricted to a 
maximum tonnage based upon the annual average catch over the 
designated period. 

It will be noted under this principle that the coastal state is granted 
preferential rights in three important ways : ( 1 ) preference as to an 
area, (2) preference as to time, and (3) preference as to total catch. 

(1) Preference as to an area. Admittedly the granting of preferen- 
tial fishing rights to the coastal state in an area of the high seas is a 
derogation from the basic, traditional principle of freedom of fishing 



108 Volume of catch of a particular stock in relation to the total catch of all 
states in a given area would be another basis which might, after careful study, be 
considered superior to the time period for determining "historic rights" to fish 
and for calculating the average annual catch. However, the time period sug- 
gested here has the decided advantage of simplicity. 



112 

on the high seas now more than three centuries old. 109 However, this 
derogation recognizes the emerging demands of coastal states for some- 
what greater fishing rights in their coastal waters founded upon eco- 
nomic and other considerations, without going so far as to destroy a 
part of the basic principle of freedom of high seas fishing entirely. It 
should be emphasized that most of the recent demands of coastal states 
have been for exclusive fishing rights beyond the territorial sea. Many 
of these claims to exclusive fishing rights, particularly the ones of the 
South American States claiming sovereignty up to the incredible 
200 miles from shore, have no legal, economic, social or moral 
justification. 110 

Also, the formulation of the principle of preferential fishing rights 
in a limited area of the high seas adjacent to the coastal state is an 
attempt to break the impasse which has developed, and which gives 
unfortunate promise of continuing, between the coastal states which 
demand broad zones of exclusive fishing rights, and the overseas fish- 
ing states which insist upon the absolute freedom of fishing outside of 
a three mile territorial sea. Eegrettably and yet necessarily the over- 
seas states sometimes feel compelled to enforce such insistence by hav- 
ing warships accompany fishing vessels. 111 

This principle which recognizes preferential fishing rights for the 
coastal state is a middle ground which, it is hoped, will make it pos- 
sible for coastal fishing states and overseas fishing states to reach an 
equitable compromise of their extreme positions. 

(2) Preference as to time. The coastal state is granted a preference 
as to time in that its nationals may fish in the preferential zone for 
any class of fish even though they may not have fished there before, 
or at least not within the designated base period which is required 
for overseas states in order for them to establish their "historic fish- 
ing rights." This time preference may be of great importance to (a) 
long-established coastal states which have done little or no fishing 
in the preferential zone for particular stocks of fish, and (b) for the 



109 Riesenfeld, Protection of Coastal Fisheries Under International Law 15 
(1942) ; Smith, The Law and Custom of the Sea 3-5 (2nd ed. 1950) ; Colombos, 
The International Law of the Sea 39-54 (3rd rev. ed. 1954) ; Potter, The Freedom 
of the Seas 1-96 (1924). 

110 McDougal and Burke, op. cit., footnote 25 (at 539) . 

in For an account of a recent incident involving Iceland and the United 
Kingdom, see Lauterpacht, op. cit., footnote 63 (at 146, 177). 



113 

host of emerging new coastal states which will be assured of prior 
rights for their limited, but emerging fisheries industries. 112 

(3) Preference as to total catch. Perhaps the most important 
feature of the preferential principle for the coastal state is the op- 
portunity afforded to increase its catch within the preferential zone in 
the future, no matter what its catch has been in the past. By contrast, 
overseas states would have their future catches limited both as to 
amount and as to a particular class or stock of fish, the limit being 
determined by the average annual catch over the designated base 
period. 

In addition, the principle of the preferential fishing zone for coastal 
states suggested above would include a recognition of the right of the 
coastal state to adopt unilateral conservation measures, pending an 
agreement between the various states fishing in the preferential zone, 
along the lines provided in Article 7 of the Convention on Fishing 
and Conservation of the Living Resources of the High Seas. 113 

It is not proposed that the coastal state would be accorded preferen- 
tial treatment in the sense of being able to dictate or dominate the 
establishment of conservation measures. But the coastal state would 
be able to act, in case an impasse developed, to conserve stocks of fish 
until the matter could be settled by negotiation, arbitration or some 
other peaceful means. 

Also, it should be noted that the coastal state's preferential rights 
might, in exceptional cases, develop into exclusive rights under the 
principle enunciated below, although it is not expected that this would 
occur in many instances. 

3. Principle III : In Exceptional Cases, Exclusive Fishing Rights 

for Coastal States 

A coastal state shall have the right for their nationals to engage in 
fishing in limited areas of the high seas adjacent to their coasts on an 
exclusive basis in the exceptional case in which that state is primarily 
dependent upon its coastal fisheries for its economic livelihood. 



This principle is the antithesis of Principle I which recognizes the 
basic right of all states to fish in the high seas. It is based upon a 
recognition that in a few unusual and exceptional cases, the total 
economy of the coastal state is so overwhelmingly dependent upon its 
coastal fisheries as to justify this extreme departure from the three- 



^ For a list of the more than forty independent, or semi-independent, states 
established since World War II, many of which are maritime states, see 
Appendix M. 

113 U.N. Doc. A/CONF. 13/L 54 and Add. 1 (1958) . 



114 

century old principle of freedom of the high seas for fishing. This 
dependence may be reflected in various ways, such as (a) the high 
monetary value of the coastal fisheries catch in relation to the total 
domestic production of the state, and (b) the high percentage of ex- 
ports of fish products to total exports. Other tests could be devised to 
determine whether the coastal state should be entitled to exclusive fish- 
ing rights in limited areas of the high seas adjacent to its coasts. 

These exclusive fishing areas for a few states in most, if not all, cases 
ought to be narrower than those in which all other coastal states would 
enjoy preferential fishing rights in order to provide for the minimum 
encroachment on the basic principle (No. I) of freedom of fishing for 
all states beyond a narrow territorial sea. 

It will be noted that specific breadths for the preferential zone and, 
in exceptional cases, the exclusive zone, have not been suggested. This 
omission was not inadvertent. Too often in the past attention has been 
narrowly focused on the details of proposals to solve the coastal 
fisheries problem (as well as the problem of delimiting the territorial 
sea and other international law problems) without first formulating a 
broad theoretical concept which takes full, objective account of (a) the 
world community values at stake, (b) the conditions in the world 
which suggest possible alternative courses of action in order to maxi- 
mize those values for the greatest number of states, and (c) the pos- 
sible effects of alternative courses of action. 

For the above reason, the emphasis here has been upon the formula- 
tion of a set of principles, wide-spread adoption of which it is sub- 
mitted would constitute a long step toward underwriting an equitable 
and just solution of the coastal fisheries problem. 

(1) Summary and Conclusion 

Under the three complementary principles set forth above, the two 
providing for (a) preferential, and (b) in exceptional cases, exclusive 
fishing rights in limited areas of the high seas adjacent to coastal 
states would now fully recognize the economic and social conditions 
which underlie the emerging demands of states with respect to their 
coastal fisheries. Admittedly these two new principles constitute a 
significant departure from the traditional, universally-recognized 
principle of freedom of fishing in the high seas which was most re- 
cently incorporated in the 1958 Geneva Convention on the High Seas. 
It is worthy of special note here that, by contrast with the other three 
Conventions drafted at the same time, the Convention on the High 
Seas boldly begins by saying, "The States parties to this Convention, 
desiring to codify the rules of international lav) relating to the high 



115 

seas . . . have agreed as follows. . . ." 114 Thereafter, in Article 2, the 
Convention enumerates some of the freedoms of the high seas, the sec- 
ond of which is "freedom of fishing." Thus, this Convention reaffirms 
the universal recognition of the basic principle of freedom of the seas 
for fishing as well as for other purposes. 

Not only would the two new principles recognize preferential and 
exclusive fishing rights in limited areas of the high seas for the first 
time, but, perhaps more importantly, such rights would be recognized 
apart from the question of the delimitation of the territorial sea. 

It will be remembered from the previous discussion that the First 
Committee of the Conference proposed the incorporation into the 
Convention on the Territorial Sea and Contiguous Zone of an article 
providing for an exclusive fishing zone. This recent action by an in- 
ternational conference on the law of the sea in attempting to keep the 
coastal fisheries problem inextricably linked with the question of de- 
limiting the territorial sea followed the customary but, thus far, un- 
successful joint (and muddled) approach to the solution of two 
diverse problems. It is now proposed that these two problems be 
separated and that the coastal fisheries problem be resolved under the 
three complementary principles which would balance the equities be- 
tween coastal and overseas fishing states. 

Many years ago Professor Riesenfeld, a distinguished scholar, rec- 
ognized that "rightly or wrongly, the question of coastal fisheries is 
closely bound up with the international law of territorial 
waters. ..." 115 Our analysis leads to the firm conviction that the 
two questions have been wrongly bound for too long a time. 

It is hoped that the establishment of the three complementary prin- 
ciples enunciated above, detailed articles for which could be ham- 
mered out in an international conference dealing with coastal fisheries 
alone, will make it possible to solve two of the most important prob- 
lems of the law of the sea in our time : (a) the problem of the precise 
delimitation of the territorial sea with its overriding maritime and se- 
curity aspects, and (b) the problem of fishing rights of coastal states. 

F. THE NEED FOR A NARROW TERRITORIAL SEA: THE 
UNITED STATES AND FREE WORLD PERSPECTIVE 

We turn now to a more detailed examination of the reasons why it 
is imperative from the perspective of the United States and the rest of 
the Free World to have as narrow a territorial sea as possible and 
hence the maximum freedom of the high seas for utilization by all 
inclusive users. 



114 U.N. Doc A/CONF. 13/L. 53 and corr. 1 (1958) . 

115 Riesenfeld, op. cit., footnote 109 (at 3). 



116 

But first it will be helpful to review briefly the four principal rea- 
sons why many states favor an extension of the territorial sea from 
the present three miles to as much as 200 miles. 

1. Principal Reasons Why Many States Favor An Extension of 
The Territorial Sea 

(a) First and foremost is the desire on the part of several coastal 
fishing states to achieve an extension of their exclusive fishing rights 
through the blanket device of extending the territorial sea. It will be 
remembered that in some instances, particularly in the case of certain 
South American countries which claim that their only purpose is con- 
servation of fisheries, it has been asserted that the territorial sea is 
not being extended. Yet this puzzling disavowal hardly coincides 
either with the language of the decrees which have claimed sovereignty 
over a wide belt of high seas, 116 or with the actual practice of excluding 
overseas fishing vessels or fining them for fishing within 200 miles of 
the coast, and even beyond that distance. 117 

The device of a blanket extension of the territorial sea as a means 
of achieving an increase in the area of exclusive fishing rights is under- 
standable from the limited perspective of the coastal fishing interests 
and as a manifestation of an unfortunate and narrow national egoism. 
However, as shown above, it is possible for the needs of all fishing 
states, coastal as well as overseas, to be fulfilled on an equitable basis 
by the separation of the coastal fisheries problem from the question 



116 See discussion of tripartite claims of Chile-Ecuador-Peru, supra Ch. I, 
pp. 51-58. 

117 The most flagrant case involved the November 1954 seizure by Peru of five 
whaling vessels owned by Onassis, under a Panamanian flag. Two of the vessels 
were captured 160 miles off the Peruvian coast, two were attacked 300 miles off 
the coast, and the fifth, a factory ship, was 364 miles off the coast, according to 
information furnished by Panama to the Organization of American States. Peru 
refused to release the vessels until fines of $3 million were paid, 90% by Lloyd's 
of London and 10% by United States insurance companies. Phleger, "Some 
Recent Developments Affecting the Regime of the High Seas," 32 State Dept Bull. 
934, 937 (1955) ; MacChesney, op. cit., footnote 23 (at 289). A somewhat less 
flagrant violation of the freedom of the high seas, although still serious, was a 
later incident (March 1955) involving the seizure by Ecuador of two American 
flag fishing vessels 14 to 25 miles off the Ecuadorian coast. An American seaman 
was seriously wounded by gunfire and fines of nearly $50,000 were imposed on 
the two vessels. (IMd.) 

Prior to the two incidents, the United States had passed legislation protecting 
vessels on the high seas and in territorial waters of foreign countries the purpose 
of which was to provide a means of reimbursing the owner out of the United 
States Treasury for any fine which he had to pay to secure release of the vessel 
and crew. (Public Law 680, 27 August 1954, Chapter 25) ; MacChesney, op. cit., 
footnote 23 (at 436). 



117 

of the breadth of the territorial sea and the concurrent establishment 
of three broad complementary principles: (1) freedom of fishing on 
the high seas, (2) preferential fishing rights of the coastal state in 
limited areas adjacent to the coast, and (3) exclusive fishing rights of 
the coastal state in limited areas adjacent to the coast in a few excep- 
tional cases. 118 

(b) Second is the desire on the part of some states, particularly 
many newly independent states, to reject the three-mile limit because 
of the association of that limit with the large western maritime 
powers who, in some cases, were the former colonial masters of the 
new states. Several of these states constituted an Afro-Asian group 
at the Conference. An equally strong psychological reason for re- 
jecting the three-mile limit in favor of a wider breadth, which also 
lacks justification from a rational, long-run perspective, is what might 
be described as "keeping up with one's neighbors." Early evidence 
of this reason for favoring an extension of the territorial sea was 
indicated in the forthright statement of Mr. Spiropoulos, the dis- 
tinguished delegate from Greece, in the debate in the Sixth Committee 
of the General Assembly prior to the opening of the Geneva 
Conference, 

"The breadth of Greece's territorial sea at present is six miles 
I am going to tell you a secret, which I hope you will forget 
when you leave this room. We did not want a six-mile limit ; 
we felt no need for it; but we were surrounded by States 
which, even at the time of The Hague Conference, were 
insisting on a six-mile limit. Obviously, Greece could not re- 
tain the three-mile rule when neighbouring States were claim- 
ing six miles. I repeat, my Government is ready to accept 
any solution which will promote the freedom of the high 
seas. We are prepared to waive our present six-mile limit 
and accept a lower limit. Nevertheless, if neighbouring 

States extend their territorial sea to a breadth of twelve 
miles, Greece will have no choice but to follow suit." 119 

(c) Third is the desire of the Soviet bloc to extend the territorial 
sea to twelve miles obstensibly for "security" reasons but actually to 
advance their belligerent interests 120 and to increase the effectiveness 
of their submarines, particularly during wartime. In this regard, 
Mr. Dean, head of the United States delegation to the Geneva Con- 
ference, has written, in line with arguments he presented at the Con- 
ference, of the unjustifiable advantages a belligerent could gain from 
a widespread extension of the territorial sea. 



118 See discussion supra, pp. 109-115. 
119 1 Verbatim Record (A/CONF. 13/19, 58 (1957) ). 

120 Heinzen, "The Three-Mile Limit : Preserving the Freedom of the Seas," 
11 Stanford Law Review 597, 653 (1959) . 



118 

"An extension of the territorial sea of neutral nations would 
dramatically increase the striking power of enemy sub- 
marines. Submarines normally operate with considerable 
difficulty and with much risk under water within three miles 
from shore but their freedom of movement is greatly in- 
creased between three and twelve miles. If the territorial 
sea were extended to twelve miles, an enemy submarine, 
particularly one with atomic power which might operate for 
long periods without surfacing, could operate possibly un- 
detected under waters in a neutral state's territorial sea. But 
our surface ships could not operate on the surface of these 
waters within the territorial sea without risking charges of 
violating such state's neutrality. An extension of the ter- 
ritorial sea to twelve miles might thus make an enemy fleet 
of submarines, capable of discharging missiles from near the 
coast, practically inviolable while operating under water in 
the territorial seas." 121 
That this rather obvious, though unstated, reason for the Soviet 
bloc's rejection of the Free World sponsored three-mile limit (and 
to a lesser extent the Afro- Asian group's similar rejection and ad- 
vocacy of a twelve-mile limit), was for the purpose of seriously crip- 
pling the navies of the United States and her allies is borne out by 
the penetrating observation of Professor Sorensen, Chairman of the 
Danish delegation, 

"The emphasis (by the United States) on military con- 
siderations naturally had the effect of strengthening opposi- 
tion to the three-mile rule by those states, belonging to the 
Soviet as well as to the Afro-Asian group, which are antago- 
nistic to the naval supremacy of the Western powers." 122 

(d) Fourth is the desire of certain Arab states to support a 
twelve-mile limit primarily for the purpose of preventing Israel from 
having an outlet to the "high seas" of the Gulf of Aqaba. 123 

A complete list of the reasons why it is imperative to have as nar- 
row a territorial sea as possible, at least from the perspective of the 
United States and her allies would include an enumeration of all 
major objectives of the Free World such as power, wealth, enlighten- 
ment, well-being and so forth, achieved through democratic proc- 



121 Dean, "The Geneva Conference on the Law of the Sea : What Was 
Accomplished," op. cit., footnote 8 (at 607, 610). 

122 Sorensen, op. cit., footnote 17 (at 245). 

123 See discussion supra, p. 99. 



119 

esses. 124 For our purposes, however, it may be well to focus 
attention on what might be categorized as military and economic 
reasons for a narrow territorial sea. 125 



^McDougal and Burke, op. cit., footnote 25 (at 549-550). The general 
objectives enumerated by McDougal and Burke are worth listing here : 

"OBJECTIVES 

The objectives sought by claimant states embrace all the characteristic de 
mands of the nation-state for the protection and enhancement of its bases of 
power as such demands are projected upon the oceans and include also the 
various particular demands which states habitually put forward on behalf of 
the other, nongovernmental participants. In brief summary, some of the more 
significant of these manifold changing objectives may be related to certain 
general value categories. 

"Power is sought by states in advancing claims to control access to their 
own territorial base, to secure effective and economical access to the territorial 
bases of others and to share in the establishment and administration of a 
stable public order of the oceans. In time of war, of course, belligerent states 
seek to obtain command of the sea or to deny it to the enemy in order to 
interdict enemy commerce and to make his use of the sea for communication 
as costly as possible. 

"Wealth may be seen as a goal in the great congeries of claims relating to 
transportation, navigation, fishing and mineral exploitation. One may observe 
demands both to limit access to territorial base resources and markets and to 
foster ease of access to distant resources and markets. 

"Enlightenment is pursued as a major goal in attempts to preserve the sea as 
a locale for conducting scientific research and exploration and as a cheap and 
efficient means of transportation and communication, affording access not only 
to the homeland but to the whole globe for the acquisition of new knowledge. 

"Well-being is a fundamental objective in the variety of claims directed toward 
prevention of plagues and preservation of health, and in certain claims to fishery 
exploitation. 

"Respect is sought in the efforts of a claimant to secure access as an equal 
participant, free from discrimination, in all the power-enhancing and wealth- 
producing activities of the world which have special reference to the use of the 
oceans. The enormous importance attached to fleets, control of ports and the 
display of flags, as symbols of status, is commonplace. 

"Skill has been a traditional objective of states in seeking to assure through 
use of the oceans and access to the experience of others a reservoir of trained 
maritime and other personnel for purposes of both war and peace. 

"Solidarity — primary and large group attachments — is embodied in demands 
which emphasize the oceans as means of promoting broader identification of 
peoples by providing a focus for organization of transnational loyalties and 
common sentiment, as in the North Atlantic community. 

"Rectitude appears as a goal in attempts to reconcile many varying concep- 
tions of right and wrong from many different cultures, both in a law of the sea 
and in other standards, for the promotion of co-operative activity." 

125 Dean, "The Geneva Conference on the Law of the Sea: What Was Accom- 
plished," op. cit., footnote 8 (at 607-608) . 



120 

2. Military Reasons for a Narrow Territorial Sea 

The United States and most of the other countries of the Free 
World comprise an oceanic confederation. Since a majority of the 
states of the Free World bloc, as well as some important neutral states, 
are maritime states, their security is dependent upon the mobility and 
flexibility of their own and United States naval forces and merchant 
fleets. It must be emphasized that the Free World bloc is inter- 
dependent ; no one of the states — not even the United States as power- 
ful as she is — can stand alone against either the hot or cold war 
designs, probings, and pressures of Communist states, particularly the 
Soviet Union. 

Inasmuch as the Free World states, including not only coastal states 
but land-locked states as well, are so interdependent both for security 
and economic development, the lifelines which bind them together 
are the sea lanes through which effective military forces may be 
deployed and war materiel and economic goods transported whenever 
a Communist coup appears imminent. 

At the present time the Free World countries as a group have a 
decided advantage both as naval 126 and commercial maritime 
powers. 127 

Since the United States Navy and merchant fleets and the navies 
and merchant fleets of the rest of the Free World are major instru- 



126 Jane's Fighting Ships, 70 (1959-60) ; Brassey's Annual, "The Armed Forces 

Year-Book," passim (1958). 

127 Merchant Fleets of the World (as of Dec. 31, 1958), U.S. Maritime Admin- 
istration. The rankings of the first twelve states at the end of 1958 were as 
follows (Ibid., 2) : 

DEADWEIGHT 
RANK STATE TONS 

1 United States 33, 653, 000 

2 United Kingdom 24, 372, 000 

3 Liberia 17, 790, 000 

4 Norway . 14, 142, 000 

5 Japan 7, 723, 000 

6 Panama 6, 609, 000 

7 Italy 6, 503, 000 

8 West Germany 5, 660, 000 

9 The Netherlands . 5,465,000 

10 France 5, 398, 000 

11 Sweden 4, 751, 000 

12 U.S.S.R. 3, 809, 000 

( Note : The above publication appears to be in error at 15 in saying that 

Denmark "ranked twelfth among the maritime nations of the world." At the 
end of 1958 Denmark had only 2,745,000 deadweight tons of merchant fleet 
which is less than that for the U.S.S.R. even if one deducts from the figure 
given above (3,809,000) the 785,000 deadweight tons of lend-lease vessels.) 



121 

merits in preserving world peace, and since the effectiveness of these 
navies and merchant fleets depends so much upon the maximum free- 
dom of the high seas for unrestricted and unfettered navigation, it is 
imperative that the territorial seas of the world be kept to a minimum. 
It has already been noted that an extension of the territorial sea from 
three to six miles would mean that more than fifty international straits 
which are now high seas would become territorial seas, and an ex- 
tension from three to twelve miles would mean that more than one 
hundred international straits which are now high seas would become 
territorial seas. 128 

While it is true that under the Convention on the Territorial Sea 
and Contiguous Zone warships as well as merchant ships have the right 
of innocent passage, and while this right may not be suspended in 
international straits even temporarily by the coastal state either under 
provisions of the Convention, 129 or under the decision of the Interna- 
tional Court of Justice in the Corfu Channel case, 130 "passage" as de- 
fined in the Convention is limited to the specific purpose of traversing 
the sea. 131 

Moreover, the coastal state may impose regulations on navigation 
through its territorial sea and even suspend passage temporarily in 
such waters (other than in straits) if such suspension "is essential 
for the protection of its security." 132 Therefore, the navies and mer- 
chant fleets of the Free World would have far less mobility and far 
fewer rights in the extended area of the territorial seas beyond three 
miles than they now have when those waters are high seas. 

It must be emphasized again and again that the right of freedom 
of navigation on the high seas is a greater right than the right of 
innocent passage through the territorial sea of a coastal state. The 
former right (i.e., freedom of navigation on the high seas) is the 
right to use a common resource subject only to (a) the general obliga- 
tion to accommodate other inclusive users, and (b) any self-imposed 
specific obligation resulting from a treaty. The latter right (i.e., 
the right of innocent passage through the territorial sea) is a limited 
right to use an exclusive rather than a common resource over which 
the coastal state has sovereignty. In its exercise of sovereignty the 



128 See discussion, supra, p. 90. For a brief geographical and hydrographical 
study of some of the major straits which constitute routes for international 
traffic, see U.N. Preparatory Document No. 6 (A/CONF. 13/6 and Add. 1 (1957) ), 
mimeographed, and also printed in I Official Records (A/CONF. 13/37, 114-164 
(1958)). 

129 Art. 16(4). 

130 Corfu Channel Case, I.C.J. Reports 4 (1949) ; 43 A.J.I.L. 558 (1949). 

131 Art. 14(2). 

132 Art. 16(3). 

607631—61 9 



122 

coastal state may issue rules and regulations governing the "passage" 
through its territorial sea and may, under proper conditions, even 
suspend such passage (i.e., the right of innocent passage is subject 
to divestment) . It follows that the right of innocent passage through 
the territorial sea, while by no means a second-class right, is not the 
equivalent of the right to navigate freely on the high seas. There- 
fore, it is imperative that the area of the high seas be kept to the 
maximum and the breadth of the territorial sea be kept as narrow 
as possible. 

Moreover, it cannot be emphasized too strongly that the military 
air forces and the commercial air fleets of the Free World, which are 
also a vital deterrent to the spread of Communism, would be even 
more hampered by an extension of the territorial sea beyond the 
three-mile limit than would be true of the navies and merchant fleets 
of the Free World for the reason that the right of innocent passage 
does not apply to the airspace above the territorial sea. As Mr. Dean 
has said, 

"There is no right for aircraft to overfly another nation's 
territorial sea except under a treaty, with its consent, or pur- 
suant to the Chicago Civil Aviation Convention of 1944 as 
to the contracting parties thereto." 133 

It is unfortunate that international law at present does not accord 
to aircraft the same right of innocent passage to overfly the territorial 
sea as warships and merchant vessels have to navigate thereon, except, 
of course, where control or exclusion of foreign aircraft is necessary 
for security reasons. The United Kingdom in its compromise pro- 
posal to extend the territorial sea to six miles inserted a provision 
which would have kept the airspace above the outward three miles 
free for aircraft to overfly as though it were airspace above high 
seas. 134 While this provision was laudable as an effort to keep the 
airspace as free as possible for unrestricted flight, it failed to achieve 
much support. 

It should be emphasized that the increased mobility and flexibility 
which a narrow territorial sea gives to the navies and the air forces of 
the Free World does not mean that the striking force of these defense 
components will have to be used to deter the spread of communism. 
Indeed, the deterrent effect often results from the mere presence and 
display of the navies and air forces. Witness, for example, the de- 



133 Dean, "The Geneva Conference on the Law of the Sea : What Was Ac- 
complished," op. cit., footnote 8 (at 607, 610) . 

134 U.N. Doc. A/CONF. 13/0. 1/L. 134 (1958) ; 3 Official Records 247-8 (1958). 
The United Kingdom proposal protected not only the existing rights of air 
passage in the outer three miles, but all vessels, including warships. 



123 

terrent effect of the presence of the United States Seventh Fleet in the 
defense of the Nationalist Chinese islands of Quemoy and Matsu, and 
the stabilizing influence of the United States Sixth Fleet in the 
Mediterranean. 

While it is true that the deterrent effect of a display of force in a 
given area of the world is difficult to measure, largely because it is 
psychological, the Free World should strive unceasingly to retain 
whatever advantage is derived from such display. To do this, it 
would be highly desirable to retain the present three-mile limit; it 
is imperative that the Free World not agree to an extension of the 
territorial sea beyond six miles. One reason is clear : ships and air- 
craft may be identified visually, though not well, at six miles. How- 
ever, at twelve miles it is not possible to see an aircraft with the 
naked eye, nor to identify even large warships. Hence, the deterrent 
effect and stabilizing influence of a display of naval force in a 
trouble- area of the world where a three-mile territorial sea exists 
would be reduced by at least 50% if the limit were extended to six 
miles; it would be reduced to nil with a 12-mile territorial sea. 

Finally, one may include among the military reasons why the 
territorial sea should be kept as narrow as possible — preferably a 
three-mile limit but in all events not more than six miles — the fact 
that as the territorial sea becomes wider the problems of neutral states 
become greater. Far too often states tend to think of their rights 
in the territorial sea (i.e., sovereignty, exclusive fishing, etc.) and 
forget their corollary duties. These duties involve both economic 
considerations, such as the cost of installing and maintaining naviga- 
tional aids, (see below) and military considerations. 

From the military standpoint, if a neutral state is to maintain its 
neutrality in order to avoid the cost in lives and property of becoming 
embroiled in belligerency, it is necessary for it to patrol its territorial 
sea. The wider the territorial sea, the larger the patrol fleet which 
would be required. Conversely, the narrower the territorial sea the 
smaller the patrol fleet and the less chance of inadvertent involvement 
in the belligerency. 

If the small maritime states of the world, particularly those with 
strategic coastlines and strong desires to remain neutral in a possible 
conflict between other states, would weigh carefully the added bur- 
dens and risks which any extension of the territorial sea would im- 
pose upon their neutrality, it is firmly believed that they would line 
up solidly in favor of a retention of the three-mile limit. The ex- 
ercise of sovereignty over the territorial sea is a responsibility and 
a risk as well as a right. Minimization of the risk is not achieved, 
nor withdrawal from risk enhanced, when the area of the risk is 
enlarged. 



124 

3. Economic Reasons for a Narrow Terriloria! Sea 

In addition to the increased cost of patrolling an extended territorial 
sea by a netural state to insure conformance with the requirements 
of neutrality, the additional costs of installing and maintaining navi- 
gational aids if the territorial sea were extended from three to six 
or twelve miles would prove to be a serious financial burden for 
many states, particularly those which are relatively poor economically. 

It is estimated that the United States would require an expendi- 
ture of several million dollars plus a substantial increase in annual 
operating costs of more than a million dollars for each 100 miles of 
coastline if the territorial sea were extended from three to twelve 
miles. In addition, burdensome expenditures would have to be made 
for navigational aids and to change the charts, maps, and manuals 
which mariners must use. Of course, the initial expenditures and 
added financial expense required per mile of coastline would vary 
throughout the world, depending upon the geomorphological condi- 
tions. But, it is clear that for all maritime states, especially for 
the small, economically underdeveloped ones, the additional cost of 
an extended territorial sea would prove financially burdensome. 

In addition to the increased economic burdens on the coastal state 
as indicated above, an extension of the territorial sea would increase 
the cost of transporting goods and people. Landlocked states as well 
as coastal states would suffer from these increased costs. 

Despite the recognized right of innocent passage of vessels through 
the territorial sea, the movement of goods and people both by surface 
vessels and aircraft would be adversely affected by an extension of the 
territorial sea. New, longer, and in many cases more hazardous routes 
would have to be developed in order to avoid the hampering regula- 
tions which some coastal states would undoubtedly impose upon ves- 
sels using their extended territorial seas. 

As the chairman of the United States delegation to the United 
Nations Conference has said, 

"The operation of commercial shipping on, or commercial 
aircraft over, water would also be greatly handicapped, 
slowed down and subjected to interminable delays. Indeed, 
it would seem to have been part of the Russian purpose in 
backing extensions of the territorial sea so to hamper the 
commerce of the free world as a part of its sand-in-the-gear- 
box technique. . . The right and ability of merchant ships 
carrying goods and passengers to schedule the most economi- 
cal passage possible between ports, to enter and leave harbors 



125 

freely, and to move on the surface of the water Avithout in- 
terruption or delay would be jeojardized." 135 

Inasmuch as the cost of all movement of goods and people by ships 
and aircraft must be borne eventually by the recipients of the goods 
and services, the impediments to such commerce and transportation 
and the added risks thereof resulting from an extension of the terri- 
torial sea would be reflected in higher costs. These increased costs 
would represent an unnecessary economic waste and result in a fur- 
ther shackling of international trade at a time when one of the great 
needs of the world is to facilitate the free flow of goods and people. 
It is seldom realized that the world's ocean commerce accounts for 
more than three quarters of the total tonnage of goods exchanged 
among states. 136 To advocate an increase in the already heavy bur- 
dens on that commerce by extending the territorial sea from the 
present three-mile limit to, say, twelve miles, is to take temporary 
leave from one's common sense. 

It may be concluded that both for military and economic reasons it 
is imperative from the perspective of the United States and the rest of 
the Free World that the territorial sea be kept as narrow as possible, 
preferably at the present three-mile limit, or at most extended to not 
over a six-mile limit. 137 



135 Dean, "The Geneva Conference on the Law of the Sea : What Was Accom- 
plished," op. cit., footnote 8 (at 607, 612) . 

138 Woytinsky and Woytinsky, World Commerce and Governments 429 (1955). 

137 Were it not for the fact that the concept of a territorial sea is so firmly 
established in international law (albeit with widely disputed origin), and given 
an equitable solution to the coastal fisheries problem along the lines indicated 
above, it might be argued that the "territorial sea" be abolished entirely from 
international law. 

Many readers may gasp at this suggestion, and perhaps even recoil from the 
thought of pulling a state's boundaries back to the shoreline and abandoning a 
concept so venerable as the "territorial sea." Yet, a little sober reflection will 
lead to the unassailable conclusion that one of the primary reasons for the 
development of the concept, particularly during the 19th century, no longer has 
any real validity. Security of a coastal state against attack from the sea has 
been one of the foremost reasons why a state needed to extend its boundaries 
from the shoreline to encompass a narrow band of waters. Shore batteries could 
keep an invading force away from the coasts, and foreign naval vessels beyond 
the three-mile limit could not bombard the ports and military installations with 
their limited-range naval guns. Today, in an era of intercontinental ballistic 
missiles and other advanced (and rapidly advancing) weaponry, which makes 
it possible for submarines to fire missiles while submerged several hundred 
miles at sea, the need for a territorial sea of three, six or even twelve miles as 
security against attack is meaningless. 

While it is still true that a coastal state needs some way to control access 
to its shores and the ocean and air traffic in the area immediately adjacent 



126 

ADDENDUM 

The above chapter was written prior to the convening of the second 
United Nations Conference on the Law of the Sea in Geneva, March 
1960. For a discussion of the results of this Convention see Appendix 



thereto for a variety of purposes, including security against attack and the pre- 
vention of infringement of its customs, fiscal, immigration, sanitary and other 
regulations, it is not necessary to have a territorial sea for this purpose. In 
fact, the inadequacy of the territorial sea for accomplishing such purposes is 
what led to the development of continguous zones, some of which extend out 
several hundred miles (e.g., the Air Defense Identification Zone for aircraft- 
ADIZ). 



CHAPTER IV 

PROBLEM SITUATIONS INVOLVING THE QUESTION OF 
INNOCENT PASSAGE THROUGH THE TERRITORIAL 
SEA 

For many years State A had claimed a territorial sea of three miles 
but recently by presidential proclamation had extended it to six 
miles.* State B, adjacent to and south of State A, has long claimed 
a six-mile territorial sea. State B did not protest State A's territo- 
rial sea extension ; however, other states have filed formal protests. 

Ships bound to and from State B, including merchantmen, fishing 
vessels and warships, customarily used a sea lane located between three 
and five miles off the southern coast of State A for a distance of about 
100 miles. At the northern end of this 100-mile stretch, which was 
approximately one-third of the length of State A's coastline, the sea 
lane veered away from State A's coast and out into the high seas. 
Until State A's recent presidential proclamation this sea lane was 
entirely high seas opposite State A's coast, but now it was well within 
the newly-declared territorial sea. 

A recent change in the government of State B brought to power 
several men who were unfriendly to the leaders of State A, and who, 
it was widely rumored, had designs on part of State A's territory 
nearest State B. 

Officials of State A had observed recently an increase in the number 
of ships of State B which were traversing and occasionally anchoring 
in the territorial sea of State A, usually between the three and six- 
mile limits, but often inside of the three-mile limit. 

State B was known to have nuclear weapons, a large high seas fish- 
ing fleet, and a good-sized navy. 

State A took a number of steps to augment her security against pos- 
sible attack, particularly by State B, including the following : 

(1) State A built a number of detection installations along her 
entire coast, including the northern portion of her territory winch 
was sparsely populated. 

(2) State A issued the following regulations to all states: 



: See Diagram 

127 



128 




TERRITORY OF STATE A 
CLAIMED BY OFFICIALS 
OF STATE B. 



-CUSTOMARY SEA LANE 

(1) ENTIRELY IN HIGH SEAS ADJACENT TO 
STATE As COAST UNTIL TERRITORIAL SEA 
EXTENDED FROM 3 TO 6 MILES. 

(2) NOW WITHIN STATE As EXTENDED 
TERRITORIAL SEA FOR A CONSIDERABLE 
DISTANCE 



STATE B 6-MILE 
TERRITORIAL SEA 



NOT DRAWN TO SCALE 



Diagram of problem situations right of innocent passage. 

(a) All foreign submarines must navigate on the surface of 
State A's territorial sea and show their flags ; 

(b) All foreign warships must give State A 24-hour prior noti- 
fication of the intended passage through State A's territorial sea ; 

(c) All foreign warships must have their radar equipment se- 
cured* when passing through State A's territorial sea, except when 
weather conditions make navigation by visual devices hazardous ; 

(d) All foreign vessels are forbidden to use State A's territorial 
sea if they have nuclear weapons aboard ; 

* "Secure," as used here, means "to lock up," "to put away," or "to make 
unavailable for use." 



129 

(e) All foreign vessels are forbidden to use State A's territorial 
sea if they are transporting any war materiel bound to State B ; 

(f) All foreign fishing vessels are required to secure their fish- 
ing gear when passing through State A's territorial sea. 

Several states officially acknowledged receipt of these regulations 
but State B did not. However, a discussion of the regulations ap- 
peared in the press of State B, including adverse comments by "unoffi- 
cial sources" who claimed that State A was guilty of aggressive action 
taken against State B. 

Subsequently the following events took place within State A's six- 
mile territorial sea. Which, if any, were violations of the right of in- 
nocent passage under the provisions of the Geneva Convention on the 
Territorial Sea and Contiguous Zone of 1958? What actions could 
State A take to prevent or punish what it considered to be violations 
of the right of innocent passage through her territorial sea ? 

EVENT I 

A submarine, The Sailfish, was observed surfacing approximately 
five miles off State A's shore about two miles north of the border 
between the territorial seas of States A and B. It proceeded south 
for a short distance without showing its flag, then stopped and 
anchored. When challenged by a naval vessel of State A, The Sail- 
fish identified herself as belonging to State B and hoisted her flag. 
When questioned by State A's vessel as to why she had anchored in 
State A's territorial sea, The Sailfish weighed anchor and proceeded 
into her own territorial sea without responding. 

EVENT II 

A warship, The El Toro, of State B, without giving prior identi- 
fication to State A, departed from a port in State B and proceeded 
into the territorial sea of State A approximately three miles off the 
coast, heading in a northerly direction in the customary sea lane. 
The El Toro's radar equipment was in operation. Instead of follow- 
ing the sea lane out into the high seas at a point about 100 miles from 
State A's southern border, as she had done on previous occasions, the 
El Toro proceeded up State A's coast within the territorial sea and 
intensified the use of her radar equipment. 

State A's detection stations observed the El Toro enter her terri- 
torial sea and knew that her radar equipment had not been secured 
in accordance with State A's regulations. The detection stations and 
visual observation posts kept the El Toro under constant surveillance 
as it proceeded along the coast, expecting it to follow the sea lane out 
into the high seas. When it did not do so, State A signalled the war- 



130 

ship to depart from her territorial sea immediately for having failed 
to give the required 24-hour notification and for failure to secure her 
radar equipment while in State A's territorial sea. The El Toro fi- 
nally left State A's territorial sea but continued to cruise northward 
along the coast outside of the six-mile limit. When opposite the 
northernmost portion of State A's territory in an area of the high seas 
little used for navigation or fishing, the El Toro cruised back and forth 
conducting a gunnery exercise, firing both nuclear and non-nuclear 
weapons seaward. During this exercise the El Toro was outside the 
six-mile limit except during one of her maneuvers when she was a short 
distance inside State A's territorial sea for a limited period of time. 

EVENT in 

A merchant ship, The Queen Bee, of State X, following the custom- 
ary sea lane adjacent to the southern portion of State A, was pro- 
ceeding in a southerly direction never closer than four miles to State 
A's coast toward a port of State B with a cargo which included some 
military equipment. 

Officials of State A had good reason to suspect that The Queen 
Bee was carrying the military cargo to State B. 

State X had long claimed a three-mile territorial sea and was one 
of the states which had filed a formal protest when State A extended 
her territorial sea from three to six miles by presidential proclamation. 

After travelling a short distance within the territorial sea as 
claimed by State A, The Queen Bee was challenged by a warship of 
State A and escorted outside the six-mile limit. 

Later State X filed a formal protest with State A claiming (a) 
that State A's extension of her territorial sea from three to six 
miles had no validity under international law, and (b) that assum- 
ing, without admitting, the validity of State A's six-mile territorial 
sea, State A had no right under the Geneva Convention on the Ter- 
ritorial Sea and Contiguous Zone to deny the right of innocent pas- 
sage to a vessel carrying military cargo, no matter where it was 
bound. 

EVENT IV 

A fishing vessel, The Pelican, of State B, returning from a suc- 
cessful fishing trip in the high seas, was observed by officials of 
State A late one afternoon about two miles off State A's coast, ap- 
proximately one mile to the landward of the customary sea lane, 
proceeding at about four knots toward her home port. 

The Pelican was some twenty miles north of the border between 
States A and B ; in an area of State A's territorial sea known to be 
good fishing waters. 



131 

Although the fishing nets of The Pelican were not secured in accord- 
ance with State A's regulations they were not in the water. Officials 
of State A, not knowing that The Pelican's holds were already full 
of fish, were suspicious that she might be planning to fish after dark 
en route to her home port. 

State A's officials, after observing members of the crew of The 
Pelican taking hand-line soundings and sea bed samples as the vessel 
cruised southward, ordered a warship to visit and search her in order 
to determine (a) why The Pelican was proceeding so slowly through 
State A's territorial sea, (b) why she was approximately one mile 
landward of the customary sea lane, and (c) why her crew members 
were taking soundings and sea bed samples. 

During the visit and search which took only thirty minutes, officers 
of the warship accidentally discovered among the crew a Mr. K., a 
citizen of State A wanted in State A for several felonies. Mr. K. 
was arrested and taken aboard the warship, after which The Pelican 
was escorted outside the six-mile limit for having violated the right 
of innocent passage. 

ANALYSIS 

A. EVENT I (Submarine surfacing within the territorial sea, an- 
choring, and failing to fly flag. ) 

It seems clear that when State B's submarine, The Sailfish, sur- 
faced within State A's six-mile territorial sea it violated Article 14(6) 
of the Geneva Convention which provides that "submarines are re- 
quired to navigate on the surface and to show their flag." Since 
The Sailfish surfaced about five miles off State A's coast, it must have 
travelled submerged for at least a mile in the territorial sea. 

While other states which claim a narrower territorial sea than six 
miles, say, three or four miles, would not be bound by State A's ex- 
tension of her territorial sea of the additional three miles unless there 
was an implied accession to the extension after ample time for pro- 
testing, it would be untenable for State B to object because she her- 
self claims six miles. 1 Therefore, as to State B the extension by 
State A of her territorial sea from three miles to six miles is binding 
both because State B claims six miles and because of the implied 
assent in State B's failure to file a protest. State B's submarine is 
required to navigate on the surface within State A's six-mile 
territorial sea. 



1 Rights claimed unilaterally by states vis-a-vis each other are reciprocal in 
the sense that one state generally may not deny to another state a right which 
it is claiming for itself unless (a) the right is exclusive to the first state (e.g., 
the exclusive right to fish in a state's own territorial sea, or exploit the natural 



132 

The failure of The Sailfish to show her flag until challenged to do 
so was also a violation of the Convention. Although the draft, articles 
of the International Law Commission provided only that "submarines 
are required to navigate on the surface," without requiring a showing 
of the flag, the Conference wisely included this latter provision as 
added protection to the coastal state. 

Whether The Sailfish violated the Convention in stopping and an- 
choring is debatable. Such action is permitted under Article 14(3) 
"but only in so far as the same are incidental to ordinary navigation or 
are rendered necessary by force majeure or by distress." 2 The Sail- 
fish might be able to show that her stopping and anchoring were in 
conformity with the provisions of the Convention. However, refusal 
of The Sailfish to respond to State A's question as to why she had 
stopped and anchored suggests the absence of any distress, force ma- 
jeure, or that the submarine's action was in fact incidental to ordinary 
navigation. 

resources of its continental shelf) ; or (b) the right is predicated upon unusual 
circumstances which are generally recognized in the world community as giving 
rise to the special right (e.g., a state such as Norway with a deeply indented 
coastline may claim the right to use straight baselines from which to measure 
the breadth of the territorial sea and deny to a state with a smooth coastline 
the right to use the same basis of measurement). {Anglo-Norwegian Fisheries 
Case, I.G.J. Reports, 116 (1951) ; Convention on Territorial Sea and Contiguous 
Zone, Art. 4) ; or (c) the right is an "historic" one which has been long recognized 
(e.g., historic bays, etc.). 

But, aside from these major exceptions, one state must accord to other states 

in the international community the same rights which it is claiming for itself. 

Hence, a state claiming a six-mile territorial sea under the facts given here 

would be in an untenable position in denying the validity of an equivalent claim 

by another state. 

It should be emphasized, of course, that although one state may be bound by 
a fortiori reasoning from denying to another what is being claimed for itself, this 
fact alone does not bind other states which claim something less. For example, 
the fact that Chile, Ecuador and Peru have claimed sovereignty over a 200-mile 
breadth of high seas would preclude their objecting if some other state made a 
similar claim. However, this fact does not establish the 200-mile claim as the 
new customary international law of the territorial sea. Similarly, the fact that 
State B in the problem situation claims a six-mile territorial sea and hence must 
accord that same right to State A under the facts given, does not mean that the 
six-mile limit thereby becomes international law. While it is true that wide- 
spread state practice develops a customary international law by the process 
of reciprocal interaction and accommodation of competing claims, the practice 
must be sufficiently inclusive of the major claimants to justify a finding of 
the emergence of a new customary international law. In the case of a question 
involving the law of the sea such as the breadth of the territorial sea, a six- 
mile limit could not be claimed as the new international law, absent an accession, 
express or implied, by a majority of the major maritime states. 

2 U.N. Doc. A/CONF. 13/L. 52 (1958) . 



133 

Hence, unless State B provides a satisfactory answer to State A's 
question regarding the reason for the stopping and anchoring by The 
Sailfish, it may be concluded that this action, like the other two, was 
in violation of the Convention. 

B. EVENT II (Passage of State B's warship without 24-hour notifi- 
cation. ) 

The first and foremost question is whether warships have the right 
of innocent passage through the territorial sea. Clearly the Conven- 
tion on the Territorial Sea and Contiguous Zone guarantees the right 
of "innocent passage" to such ships as well as to other types of vessels. 
Section II of the Convention is headed "Right of Innocent Passage" 
and Sub-Section A is entitled "Rules applicable to All Ships." 3 
Moreover, in Article 14 which follows immediately after Sub-Section 
A, paragraph six relates to a specific type of warship, namely, sub- 
marines, expressly providing that "submarines are required to navi- 
gate on the surface and to show their flag." 4 This provision indicates 
exactly what this particular type of warship must do in two respects in 
order not to violate the right of innocent passage. 

That the International Law Commission intended the right of in- 
nocent passage to apply to warships, subject to the express right of 
the coastal state under Sub-Section D to impose regulations on war- 
ships is indicated by the commentary to its final articles which, under 
the heading, "Right of Innocent Passage," says that "the general 
rules laid down in sub-section A . . . apply to the ships referred to 
in sub-sections C and D, subject to the reservations stated there." 5 

It is true that the above commentary is somewhat in conflict with 
Article 24 of the International Law Commission's final draft articles 
which would have required prior notification and authorization for 
warships to pass through territorial seas, indicating that it would 
not be a right of the flag state but a privilege which could be granted 
or withheld. Indeed, the last sentence of this Article 24 begins, "Nor- 
mally it (the coastal state) shall grant innocent passage. . . ." 6 
However, it will be remembered that this proposal of the Interna- 
tional Law Commission was omitted from the Convention, clearly in- 
dicating that innocent passage through the territorial sea was 
considered by the Conference to be a right of warships, as well as for 
all other vessels, and not merely a privilege which the coastal state 
might grant or withhold. 

Dr. El-Erian of Egypt staunchly maintains that the record of the 
Geneva Conference indicates that warships do not have the right 

3 U.N. Doc. A/CONF. 13/L. 52 (1958). 
*IMd., at Art. 14(6). 

5 U.N. Doc. A/3159, 18 (1956). 

6 IUd., at 22 



134: 

of innocent passage. 7 Professor Sorensen of Denmark also believes 
that the majority of delegates did not intend warships to have this 
right, although he admits frankly that "the actual text of the Con- 
vention would therefore warrant the conclusion that warships have 
the same rights in this respect as other ships. . . ." 8 A careful an- 
alysis of the record of the Geneva Conference supports the conclusion 
that the majority of states favored the right of innocent passage for 
warships and drafted the provisions of the Convention accordingly. 
With all due deference to advocates of a contrary view, on this matter 
they are in error. 

Finally, perhaps as strong evidence as any that the Convention does 
guarantee the right of innocent passage for warships is the fact that 
members of the Soviet bloc who were most opposed to granting this 
right to warships, 9 almost uniformly filed reservations to Article 23 
of the Convention at the time of signature, the net import of which 
is to reduce the right of innocent passage to a mere privilege in their 
own territorial seas. Typical is the reservation of the U.S.S.R. which 
provides, 

"The Government of the Union of Soviet Socialist Re- 
publics considers that a coastal State has the right to estab- 
lish procedures for the authorization of the passage of foreign 
warships through its territorial waters." 10 

Similar reservations to Article 23 were also filed by Bulgaria, 
Byelorussia, Czechoslovakia, Hungary, Romania, and the Ukraine. 11 
Colombia filed a declaration regarding Article 23 along the same 
lines, using a curious and inapplicable analogy to the passage of 
foreign troops through Colombian territory, saying, 

". . . [UJnder Article 98 of the Colombian Constitution, 
authorization by the Senate is required for the passage of 
foreign troops through Colombian territory and that, by 
analogy, such authorization is accordingly also required for 
the passage of foreign warships through Colombian terri- 
torial waters." 12 

It is obvious that if the states indicated above had not felt that the 
Convention guarantees the right of innocent passage to warships, they 

7 U.N. General Assembly Official Records 13th Sess., 6th Comm. A/O. 6/SR. 590, 
14 (1958) (provisional record). 

8 Sorensen, "The Law of the Sea," International Conciliation, No. 520, 244 
(1958). 

9 See arguments of Yugoslav and U.S.S.R. delegates in 3 Official Records 
(A/CONF. 13/39, 129 (1958) ). 

10 Information supplied by the U.N. Secretariat. 

11 Ibid. 

12 Ibid. 



135 

would not have made a reservation to the Convention to deny the 
right by making passage subject to prior authorization by the coastal 
state. 

EVENT II (Passage of warship without giving prior notification) 

The next question is whether the warship, the El Toro of State B, 
violated the Convention by not giving prior notification to State A of 
its intention to enter State A's territorial sea. 

The final articles of the International Law Commission contained 
a provision which made the passage of warships through the terri- 
torial sea subject not only to prior notification but also previous au- 
thorization. However, the Convention contains no such provision. 
Therefore, it would appear that State B had no duty to State A to 
give prior notification. 

On the other hand, Article 23 of the Convention gives the coastal 
state the right to impose regulations concerning the passage of war- 
ships as follows: 

"If any warship does not comply with the regulations of 
the coastal State concerning passage through the territorial 
sea and disregards any request for compliance which is made 
to it, the coastal State may require the warship to leave the 
territorial sea." 13 

Except for a slight change in wording, this article is the same as 
Article 25 of the final draft of the International Law Commission. 14 
The question then arises as to whether a coastal state may include 
among its regulations one requiring prior notification since the Con- 
vention eliminated that specific provision from its articles, along with 
the one permitting the coastal state to require previous authorization. 

It could be argued that since this specific provision as to prior 
notification was placed in a separate article by the International Law 
Commission, the more general article permitting the coastal state 
to impose regulations was not intended to go so far as to permit a 
regulation requiring prior notification (and authorization). If the 
general article permitting regulations had contemplated such safe- 
guards to the coastal state as prior notification and authorization, it 
would have been superfluous to have stated them in a separate 
article. 



13 U.N. Doc. A/CONF. 13/L. 52, Art. 23 (1958) . 

11 U.N. Doe. A/3159, 23 (1956). The commentary by the I.L.C. following this 
Article (25) is not at all helpful in indicating why the Article was drafted as 
it was, nor in explaining the kinds of regulations contemplated. The com- 
mentary merely says : "The article indicates the course to be followed by the 
coastal State in the event of failure to observe the regulations of the coastal 
State." 



136 

On the other hand, it seems more logical to argue that the right 
of a coastal state to impose regulations concerning passage of war- 
ships through its territorial sea includes the right to impose whatever 
regulation is reasonable, considering all of the circumstances in con- 
text. The question, therefore, is whether the requirement promulgated 
by State A requiring a 24-hour notice prior to passage of warships 
through its territorial sea is reasonable, even though the Conference 
did not include it in the Convention as a specific right of the coastal 
state. 

At this point it seems desirable to distinguish clearly between the 
right of a coastal state to demand notice from another state of the 
intended passage of a warship through the territorial sea and the right 
of a coastal state to grant or withhold authorization. The matter of 
giving notice imposes a slight duty upon the warship state, but the 
right to the innocent passage is guaranteed if the prior notice is given. 
The only act involved is that of the warship state in giving notice. 

On the other hand, the requirement of prior authorization places a 
serious burden and limitation on the warship's right of innocent pas- 
sage, reducing it to a mere privilege which the coastal state may negate 
by denying authorization. The right to the innocent passage is made 
subject to a judgment and an act by the coastal state — i.e., the decision 
whether to grant or withhold authorization and the granting of the 
authorization, plus the corollary right to refuse authorization or to 
withdraw it after it has been given. Hence, the matter of prior 
authorization contemplates an act by both states ; the act by the war- 
ship state in requesting permission, and the act by the coastal state 
in granting (or withholding) the permission. 

It was because this requirement of prior authorization would have 
eliminated the right of innocent passage for warships that it was 
rejected in the plenary meetings of the Conference. 15 

Since the general requirement of prior notice does not affect the 
right of innocent passage, inflicting no more than a slight incon- 
venience on the state which has to file notice, and since the specific 



15 The United States introduced a proposal in the First Committee to delete 
the article (Art. 24) requiring prior notice and authorization on the ground 
(a) that it contradicted Art. 15 which provided that ships of all States shall 
enjoy the right of innocent passage through the territorial sea and (b) that it 
was unnecessary in view of the definition of "innocent passage" which gave the 
coastal State all the protection it needed. The United States proposal was 
withdrawn before being voted upon (3 Official Records 127) because other simi- 
lar proposals such as that of the Netherlands (A/CONF. 13/C. 1/L. 51) were 
before the Committee. Although the requirement of prior notification and 
authorization was approved by the First Committee (3 Official Records (An- 
nexes) 258, 260), this requirement was eliminated in the plenary meetings and 
omitted from the Convention. 



137 

requirement of 24-hour notice invoked by State A appears to be 
reasonable, especially in the case of State B of whom she has certain 
justifiable fears of possible aggression, it follows that State A had 
a right under Article 23 of the Convention to issue the regulation. 

Inasmuch as the warship of State B did not give the requisite 
notice, the question then arises as to what action may be taken by 
State A. The language of Article 23 is not entirely clear on this 
question in the following respect. The article says that "the coastal 
State may require the warship to leave the territorial sea." However, 
this sanction is conditioned by a dual provision : "if the warship does 
not comply with regulations . . . and disregards any request for com- 
pliance. . . ." Since this language is conjunctive rather than dis- 
junctive, it could be argued that State A is entitled to ask the warship 
to leave the territorial sea only (1) after failure to comply with the 
regulation, which failure has occurred, and (2) after disregarding a 
request for compliance. The facts indicate that State A made a re- 
quest for the departure of the El Toro, but did not make a request 
for the compliance with the 24-hour notice prior to this request for 
the departure. Thus, if one interprets the language strictly it could 
be contended that State A could not request the departure from the 
territorial sea following the failure of the El Toro to comply with the 
24-hour notice until State B had also received and disregarded State 
A's requested compliance. 

However, a more logical conclusion would seem to be that State A 
could request the departure from the territorial sea of the El Toro 
for the non-compliance with the 24-hour notice without also having 
to make a subsequent request for compliance because once the El Toro 
entered the territorial sea of State A it became impossible, at least 
for this trip, for State A to get or for State B to give the 24-hour 
prior notice. Hence, it would be illogical to require State A to request 
compliance by State B once the territorial sea of State A had been 
entered as a condition precedent to State A's right to require the war- 
ship to leave the territorial sea. 

The language of Article 23 was probably written in its present form 
in order that a warship which had inadvertently or unknowingly 
violated some regulation of the coastal state concerning innocent 
passage through the territorial sea would not be required to leave until 
and unless she disregarded a request for compliance. However, the 
kind of compliance contemplated by the framers of Article 23 was 
surely that which would still be possible after the warship was in the 
territorial sea, such as securing of radar equipment, and not some act 
such as the giving of 24-hour notice which after entrance of the terri- 
torial sea was no longer possible. 

607631—61 10 



138 

EVENT H (Passage of warship without securing radar equipment) 

The failure of the El Toro to secure her radar equipment was a clear 
violation of State A's regulation unless the weather conditions were 
such as to make navigation by visual devices hazardous. Since the 
facts indicate that State A's visual observations were able to keep 
the El Toro under constant surveillance, it seems logical to assume 
that weather conditions were sufficiently good to enable the El Toro 
to see the shoreline and thereby navigate free from danger without 
using the radar equipment. Moreover, the fact that the El Toro 
navigated the full length of the coastline of State A and subsequently 
conducted a gunnery exercise is further evidence that the use of the 
radar was unnecessary for safe navigation. 

The next question — one which must always be asked with respect 
to all regulations imposed by the coastal state upon warships (and 
other ships) exercising the right of innocent passage through the 
territorial sea — is whether the regulation relating to the securing of all 
radar equipment was reasonable. The requirement of reasonableness 
is not only implied in order to balance the equities between the need 
for a coastal state to maintain its security, and the need of the over- 
seas state to navigate through territorial seas without undue impedi- 
ments, but is clearly expressed as a duty of the coastal state in Article 
15 which provides that : "The coastal State must not hamper innocent 
passage through the territorial sea." 

Nothing in the facts indicates that State A's requirement that all 
warships secure their radar equipment when passing through the 
territorial sea, except when weather conditions would make navigation 
by visual devices hazardous, in any way contravenes the provision of 
Article 15 that the coastal state must not hamper innocent passage. 
Hence, State B would be required to abide by the regulation, absent 
some evidence that it was either unreasonable or in some way ham- 
pered innocent passage. 

From the standpoint of State A, since it is possible for State B's 
shipboard radar equipment to be used for mapping State A's coast, 
and in view of the known animosity of State B and the possibility 
of invasion by State B in pursuance of its claim to some of State 
A's territory, State A's regulation that all radar equipment be secured 
appears to be a reasonable security measure. 

One final question remains : whether under Article 23 State A could 
order the warship out of territorial waters for violating the regula- 
tion regarding the securing of radar equipment without first making 
a request for compliance and having it disregarded. As previously 
indicated, in the discussion of the 24-hour prior notification pro- 
vision, the most plausible reason for requesting compliance, following 



139 

a violation, before invoking the sanction of requiring the warship 
to leave the territorial sea is to prevent the hampering of innocent 
passage in the case of a ship which inadvertently or unknowingly 
violates a regulation and which would thereupon be asked to depart 
from the territorial sea without first being given a chance to comply. 

In the present case, although State B had not officially acknowl- 
edged receipt of State A's regulations, it may be assumed that they 
were received and known to the officials of State B because of the 
discussion in the press. Hence, the violation could hardly have 
occurred "unknowingly." 

Could the violation have occurred "inadvertently?" This also 
does not seem likely in view of the manner in which the radar equip- 
ment was being used. 

Thus it would follow that in a case like the present one the viola- 
tion of the regulation, without the further requirement of the request 
for compliance, would be all that State A would have to show in 
order to justify the demand that El Toro depart from State A's 
territorial sea. Of course, since the El Toro did depart, although 
it re-entered later during the maneuvers, State A could not impose 
any further sanction under the Convention since the right of the 
coastal State to require the warship to leave the territorial sea is the 
only sanction provided. 

EVENT II (Passage of a warship through the territorial sea carry- 
ing nuclear weapons) 

The next question is whether State A has the right to forbid the pas- 
sage through her territorial sea of all foreign vessels which have nu- 
clear weapons aboard. 

One way to approach this question is to inquire whether the Con- 
ference included such a right in the Convention, either specifically or 
under a general provision permitting the coastal state to insure that 
the passage of foreign vessels through the territorial sea is "innocent." 
If the Convention does not contain a provision granting to the coastal 
state the specific right, did the Conference exclude this right which 
the coastal state is now trying to invoke ? 

A proposal by Yugoslavia was introduced in the First Committee 
of the Conference, but defeated by an overwhelming vote, which di- 
rectly relates to this question. Yugoslavia proposed that, 

"The coastal State may deny the exercise of the right of 
innocent passage through its territorial sea to any ship carry- 
ing any kind of nuclear weapon." 



16 



U.N. Doc. A/CONF. 13/0. 1/L. 21 (1958) 



140 

The delegate from Yugoslavia said that the proposed new para- 
graph was self-explanatory and reflected his government's belief that 
nuclear energy should be applied solely to peaceful ends and that in- 
ternational law did not authorize its utilization for military 
purposes. 17 

Before being voted upon the proposal was changed at the suggestion 
of the Yugoslav delegate so that the word "ship" read "warship." 
Despite this change which would have limited the right of prohibition 
by coastal states to warships carrying nuclear weapons through the 
territorial sea, rather than all ships, the proposal was decisively re- 
jected by 33 votes against, 7 in favor, with 22 abstentions. 18 

By refusing to adopt this proposal, the First Committee clearly in- 
dicated that the mere carrying of any kind of nuclear weapon on 
board a warship within the territorial sea of another state could not 
be prohibited. Therefore, it could be argued that the coastal state 
could not promulgate such a prohibition under the general provisions 
of the Convention which give the coastal state the right to do what is 
necessary to insure the innocence of passage of vessels through the ter- 
ritorial sea because to do so in light of the Conference action on the 
Yugoslav proposal would be to permit the inclusion of a specific right 
to a coastal state (under a general provision of the Convention) which 
the Conference emphatically excluded. 

Although this argument is persuasive, it is by no means conclusive. 
That which is omitted from this or any other convention is significant, 
but parties to a convention are only bound by what is included therein, 
not by what was excluded. Moreover, it is well recognized that the 
various committees of the Conference on the Law of the Sea, as well as 
the plenary meetings, often eschewed the inclusion in the conventions 
of a specific right or duty because it felt that the matter could be 
treated more judiciously by incorporating a general right or duty. 
Such is the case with the articles in the Convention on the Territorial 
Sea and Contiguous Zone which give the coastal state the right to 
"take the necessary steps in its territorial sea to prevent passage which 
is not innocent," 19 without specifying exactly what those necessary 
steps may include (or not include) . Also the general rule of the Con- 
vention applicable to warships gives the coastal state the right to 
pass "regulations" with which the warship must comply, 20 without 
indicating either the extent of those "regulations" or the limitations 
thereof. 

17 3 Official Records (A/CONF. 13/39, 129 (1958) ). 

18 3 Official Records (A/CONF. 13/39, 131 (1958) ). 

19 Art. 16(1). 

20 Art. 23. 



141 

It may be concluded therefore that although the Conference re- 
jected a specific proposal which would have given the coastal state 
the blanket right to prohibit all warships from carrying nuclear 
weapons through its territorial sea, under certain circumstances in- 
volving danger to security the coastal state may include such a pro- 
hibition as a part of the general rights which the Convention accords 
to the coastal state to regulate the passage of warships through the 
territorial sea. 

It will be remembered from the previous discussion of another de- 
feated proposal, the one which would have given the coastal state the 
right to require prior notification and authorization before foreign 
warships could pass through the territorial sea, it was concluded that 
the coastal state could require prior notification because such notifi- 
cation would not constitute such a burden upon innocent passage as 
to hamper it, which the coastal state is obligated not to do under 
Article 15(1). On the other hand, it was concluded that to permit 
the coastal state to require prior authorization of foreign vessels 
desiring to traverse the territorial sea would in fact place too great 
a burden on the basic right of innocent passage. 

The fundamental and pervasive test in determining the kind and 
extent of regulations which a coastal state may impose upon vessels 
passing through its territorial sea is that "simple and ubiquitous, but 
indispensable, standard of what, considering all relevant policies and 
all variables in context, is reasonable as between the parties." 21 The 
parties in the present situation are (1) the coastal state with its 
justifiable demand for security, as well as peace and good order, and 
(2) the overseas state with its equally justifiable demand for the right 
of innocent passage through the territorial sea because, without this 
right "freedom of the high seas for navigation" becomes an empty 
phrase. Since one of the primary purposes of navigation is to reach 
a destination requiring passage through some state's territorial sea, 
the right of innocent passage is vital. 

Leaving aside for the moment the action of the Conference in re- 
jecting the Yugoslav proposal which would have given the coastal 
state the kind of right which State A is now trying to invoke against 
the warship of State B, the question is whether the attempt of State 
A to prohibit the use of its territorial sea to all vessels, or at least 
all warships, carrying nuclear weapons is reasonable. To answer 
this question it is necessary to emphasize again the right-duty rela- 
tionship of the coastal state with all overseas states. The coastal 

21 McDougal and Schlei, "The Hydrogen Bomb Tests in Perspective: Lawful 
Measures for Security," 64 Yale Law Journal 648, 660 (1955) ; Jessup, The 
Law of Territorial Waters and Maritime Jurisdiction 95 (1927) ; Smith, The 
Law and Custom of the Sea 20 (2nd ed. 1950). 



142 

state has the right, among others, to take necessary steps in its ter- 
ritorial sea to prevent passage which is not innocent and to promul- 
gate rules for foreign warships. Among its various duties the coastal 
state is charged by Article 15 of the Convention with not hampering 
innocent passage of any ship, merchant vessel or warship, through 
the territorial sea. 

It should also be emphasized that the Convention relates the question 
of innocence of passage to the nature of passage itself without regard 
to any acts actually committed in the territorial sea. This being the 
case the basic question is: How could the mere carrying of nuclear 
weapons on a warship passing through the territorial sea prejudice 
the "peace, good order or security" of a coastal state, absent rather 
weighty evidence that some overt act against the coastal state was 
contemplated or that the mere carrying was ultrahazardous? 

It is difficult to see how State A could establish that carrying 
nuclear weapons through the territorial sea would endanger her 
security. If a warship is traversing the territorial sea en route to 
the high seas to conduct gunnery exercises, which is what State B 
ultimately did, the mere passage through the territorial sea hardly 
endangers the security of the coastal state. Of course, because of the 
known animosity of State B toward State A it might be suspected 
that State B contemplated hostile actions against State A either 
now or at some later date. However, this suspicion alone would 
hardly justify a denial of the right of innocent passage to B's war- 
ships just because they were carrying nuclear weapons. 

Several difficult subsidiary questions come quickly to mind : 

(1) If the coastal state may forbid warships carrying nuclear 
weapons to use its territorial sea, may this prohibition be invoked 
at the whim of the coastal state, or only after some objectively- veri- 
fiable showing of need for the prohibition in order to avoid jeopard- 
izing the "peace, good order or security of the coastal State?" Since 
the Conference voted against giving the coastal state the right of a 
blanket prohibition, it seems clear that the coastal state could forbid 
warships carrying nuclear weapons to use its territorial sea only if it 
were determined to be reasonably necessary for its own protection. 
The important fact to remember is that the passage must be innocent. 
Under the Convention passage is deemed to be innocent "so long as it 
is not prejudicial to the peace, good order or security of the coastal 
State. 22 

(2) Assuming that the mere carrying of nuclear weapons by a war- 
ship automatically destroyed its innocence of passage through the 
territorial sea, thus justifying the coastal state in prohibiting such 

22 Art. 14(4). 



143 

passage, what steps may be taken to see that the prohibition is effec- 
tive? May the coastal state require a certification from the warship 
prior to passage, reserving the right to grant or withhold authoriza- 
tion of the passage ? May the coastal state search the warship in case 
it doubts the validity of the certification, or merely order the warship 
out of the territorial sea on the basis of unconfirmed doubts ? 

These and other questions suggest that an attempt to administer 
a prohibition against warships merely carrying nuclear weapons while 
passing through the territorial sea of another state might seriously 
hamper innocent passage. In the final analysis the coastal state 
would have no way of knowing in most cases whether nuclear weap- 
ons were being carried by a warship without some sort of inspection. 
Such inspection on the high seas is not possible under Article 9 of the 
Convention on the High Seas which accords warships "complete im- 
munity from the jurisdiction of any State other than the flag State." 23 
While the Convention on the Territorial Sea and Contiguous Zone 
does not contain a similar provision, it is unlikely that any State 
would permit a boarding and inspection of its warships by a coastal 
State while passing through the territorial sea. It is obvious that 
the determination by the coastal state of the presence of nuclear 
weapons on board a warship is much more difficult than the deter- 
mination of whether a ship's radar is in use, or secured, during pas- 
sage through the territorial sea. In the latter case, if the radar equip- 
ment is being used, shore detection devices can determine this fact. 

Hence, the Conference reached a logical and correct conclusion 
in denying the coastal state the absolute right to forbid the passage 
through the territorial sea of warships carrying nuclear weapons. 
Moreover, because of the range and destructive power of such weapons, 
little if anything is added to a coastal state's security by insisting that 
a warship with nuclear weapons remain 3.1 miles off the coast with 
a three-mile territorial sea, or 6.1 miles off the coast of a state which 
claims a six-mile limit. 

Notwithstanding the above conclusion, it should be acknowledged 
that under unusual circumstances the coastal state might justifiably 
prohibit the passage of warships carrying nuclear weapons through 
its territorial sea. The Convention gives the coastal state the right 
to "take the necessary steps in its territorial sea to prevent passage 
which is not innocent," 24 and the further right "to suspend temporarily 
in specified areas of its territorial sea the innocent passage of foreign 
ships if such suspension is essential for the protection of its security." 25 



23 U.N. Doc. A/CONF. 13/L. 53 and corr. 1 (1958) 

24 Art. 16(1). 

25 



Art. 16(3). 



144 

While this latter right of suspension is not permitted in the territorial 
sea of straits which are used for international navigation, 26 it would 
apply in our present hypothetical situation which does not involve a 
strait. 

Assuming that all of the conditions of the right of temporary 
suspension of innocent passage are present, especially a showing that 
such suspension is essential for the protection of the coastal state's 
security, the right of suspension would include lesser rights such as 
exclusion of warships for the carrying of nuclear weapons. It is 
clear, however, that the coastal state would have to produce strong 
evidence which would reasonably support the security need of tem- 
porary suspension, or exclusion for carrying nuclear weapons, in order 
for such drastic action to be lawful under the Convention or, apart 
from the Convention, under the recognized principle of the inherent 
right of self-defense. 

Conclusion: Since the facts of the present case do not indicate 
any serious danger to the security of State A by the passage of vessels 
(including warships) of foreign states through State A's territorial 
sea with nuclear weapons aboard, the blanket regulations of State 
A in this regard are invalid. Therefore, State B was within her 
rights in having nuclear weapons aboard her warship and the inno- 
cence of her passage through State A's territorial sea was not de- 
stroyed by the mere presence of such weapons. 

EVENT II (Gunnery exercise of warship partly within territorial 
sea of State A) 

The next question is whether State B's warship violated certain 
provisions of the Convention on the Territorial Sea and Contiguous 
Zone by conducting a gunnery exercise, firing both nuclear and non- 
nuclear weapons seaward, in an area of the high seas (except for 
one maneuver into the territorial sea) adjacent to a remote and 
sparsely inhabited portion of State A's territory. 

In order to focus attention on the relationship between State A 
and B, we may exclude from consideration the rights and duties of 
State B to other states which might be navigating through, fishing in, 
or otherwise using the area of the high seas affected by the gunnery 
exercise. As a general principle State B would have the right to 
use this area of the high seas for gunnery exercises, subject only to 
the duty to accommodate her use to the inclusive uses of other states 

26 Art. 16(4). 



145 

in order that no user would be unreasonably endangered or impeded. 27 
Also, we may put aside consideration of any possible duties which 
State A might have had to all other states for the acts of State B in 
State A's territorial sea if the Convention had adopted the article pro- 
posed by the International Law Commission requiring, among other 
things, that the coastal state not allow the territorial sea to be used 
for acts contrary to the rights of other states. 28 

It seems clear that any use by State B of State A's territorial sea 
for a gunnery exercise, whether intentional or unintentional, was a 
violation of the Convention's definition of passage, even though the 
exercise may have been quite innocent in not prejudicing the "peace, 
good order or security" of State A. 

The maneuver of the battleship within State A's six-mile limit, even 
though of short duration, does not constitute "passage" under the Con- 
vention which provides, 

"Passage means navigation through the territorial sea for 
the purpose either of traversing that sea without entering in- 
ternal waters, or of proceeding to internal waters, or of 
making for the high seas from internal waters." 29 (italics 
added) 

27 A claim of right to use an area of the high seas for military exercises 
(i.e. gunnery exercises, nuclear weapons testing, ballistic missile firing, etc.) 
constitutes the equivalent of an exclusive use for a limited period of time of 
an area of the high sea because the danger to navigation, fishing, scientific 
research, and other uses of the area during the military exercises is such that 
all states other than the State conducting the exercises will, as a rule, stay 
clear of the area. 

The claim of right to use the designated area for the military exercises is 
justified on the ground that this is as valid a use of the high seas as the 
historic ones of navigation and fishing contemplated by Grotius over three 
centuries ago. 

But, it should be recognized that as the weapons increase in magnitude the 
area of the high seas required for the testing also increases enormously. Hence, 
serious impairment of other uses such as navigation, fishing, scientific research, 
etc., may occur unless (a) the period of the tests is reduced to a few weeks, or 
even to a few days, (b) the area is kept to the absolute minimum consistent 
with the safety of other concurrent users of the general area, (c) the area 
is selected in relatively isolated parts of the high seas little used for naviga- 
tion, fishing, etc., and (d) the military exercises, especially nuclear weapons 
testing, does not result in substantial and continued deprivation of other uses 
because of lingering after effects upon the conclusion of the exercises. 

It follows, therefore, that although it appears that the other inclusive users 
are having to do the accommodating to the state conducting the military 
exercises, the latter is burdened with a number of responsibilities to all other 
users as indicated above, plus the obvious duty to accommodate the other users 
by giving them adequate advance notice of the planned military exercises. 

28 Article 16(1) of I.L.C. final draft articles (A/3159, 6 (1956) ) . 

29 Art. 14(2). 



146 

Navigation of the El Toro in connection with a gunnery exercise 
as in the present case was not for the purpose of traversing the terri- 
torial sea. The warship was not traversing State A's territorial sea 
to get through it or to proceed to or from internal waters; instead, 
she was using the territorial sea for another purpose — a gunnery ex- 
ercise. True, during the gunnery exercise the El Toro entered the 
territoral sea at one point and left it at another and hence navigated 
through it. But, the navigation was not for the purpose contemplated 
by the Convention in summarizing the purpose which originally gave 
rise to the right of innocent passage, namely, to achieve freedom of 
navigation through the territorial seas in order to permit ships to 
reach their destinations with the least possible burden on their passage 
consistent with need of the coastal state to protect itself. 30 

Even more important than the fact that the use by State B of State 
A's territorial sea was a violation of "passage" as defined under the 
Convention on the Territorial Sea and Contiguous Zone, is the fact 
that it was a clear violation of State A's sovereignty. This sover- 
eignty, derived from more than two centuries of state practice and 
universally recognized, notwithstanding disagreement as to the 
precise breadth of the territorial sea, provides the coastal state with 
the exclusive use of the territorial sea, the subsoil and the airspace 
above the waters, subject only to the right of other states to "innocent 
passage." No other state, without express permission of the coastal 
state, may exploit any use or take any action within the territorial 
sea, whether harmful to the coastal state or not. Thus, an overseas 
state may not fish within the territorial sea, carry on perfectly in- 
nocent scientific research, or do anything therein except to navigate 
innocently for the specific purpose of traversing the sea. 

Hence, the action of State B in conducting part of its gunnery 
exercise within the territorial sea of State A, however inadvertent 
it may have been and quite aside from whether it did the slightest 
damage to the territorial sea or the sparsely populated coast of State 
A, was a violation of State A's sovereignty. Therefore, State A would 
be entitled to protest the breach of sovereignty and demand that it 
not be repeated. The facts do not indicate any damage to State A, 



30 Colombos, International Laiv of the Sea 98 (3rd rev. ed. 1954) and citations 
therein. Jessup contends that the right of innocent passage historically had 
nothing to do with the passage of ships bound to or from a port of the State and 
that the right of access to ports should be distinguished from the right of in- 
nocent passage. Jessup, "The International Law Commission's 1954 Report on 
the Regime of the Territorial Sea," 49 A.J.I.L. 221, 226 (1955). Whatever the 
historical origin of the right of innocent passage, the Convention on the Terri- 
torial Sea and Contiguous Zone now includes the right of access to internal 
waters under the right of innocent passage. 



147 

but if any did occur in connection with the breach of sovereignty, 
State B would be liable. 

C. EVENT III (Merchant ship carrying military cargo through ex- 
tended territorial sea which extension the flag State has not 
recognized. ) 

The first question relates to the effect of an attempt by a coastal 
state to extend its territorial sea through unilateral action and the 
duty, if any, of an overseas state to recognize such an extension when 
the overseas state claims a narrower territorial sea and has filed 
a formal protest against the extension. 

In oft-quoted language of the Anglo-Norwegian Fisheries Case, the 
International Court of Justice said, 

"The delimitation of sea areas has always an international 
aspect; it cannot be dependent merely upon the will of the 
coastal State as expressed in its municipal law. Although it 
is true that the act of delimitation is necessarily a unilateral 
act, because only the coastal State is competent to undertake 
it, the validity of the delimitation with regard to other 
States depends upon international law." 31 

It follows from the above language which succinctly summarizes 
the international law on the point, that whereas State A may by 
unilateral act claim an extension of her territorial sea from three to 
six miles, the claim is not binding upon other States. State X, which 
claims a three-mile limit, is not required to recognize the extension. 
Of course, if State X had failed to protest against State A's claim 
of an additional three miles of territorial sea, it might be argued 
after the lapse of a reasonable length of time that State X had tacitly 
agreed to the extension. However, in the present case State X filed 
a formal protest with State A. 

Also, it should be noted that if State X claimed a six-mile ter- 
ritorial sea, it follows that she could not object to the extension by 
State A from three to six miles. A state generally may not deny to 
other states rights which it claims for itself. 32 Here, however, the 
fact that State X has long claimed only a three-mile territorial sea 
justifies her protest to State A. 

Thus it may be concluded that as far as State X was concerned 
her merchant ship, The Queen Bee, was travelling in high seas rather 
than in the territorial sea of State A. This being the case, State A 
had no jurisdiction over The Queen Bee and was committing an 
unlawful act in escorting the merchant ship outside the six-mile limit. 

31 I.C.J. Reports, 132 (1951). 
83 See footnote 1. 



148 

Therefore part (a) of State X's protest was justified. However, 
that part of the protest which asserted that State A's extension has 
no validity under international law, is too broad. State A's extension 
of her territorial sea from three to six miles would be valid under 
international law as to states now claiming a territorial sea of six 
miles, and as to states claiming less than six miles but which failed 
to protest after the lapse of a reasonable time. 

Part (b) of State X's protest assumes, without admitting, the 
validity of State A's extension of the territorial sea to six miles and 
then challenges the right of State A under the Geneva Convention on 
the Territorial Sea and Contiguous Zone (1958) to deny the right 
of innocent passage to a vessel carrying military cargo through said 
territorial sea. 

The question here is whether passage through the territorial sea 
loses its innocence by the mere transportation of military cargo when 
no act has been committed by the ship which is prejudicial to the 
"peace, good order or security" of the coastal state. 

The language of the Convention defining innocent passage is some- 
what different from the language proposed by the International Law 
Commission. The Convention defines innocent passage in the fol- 
lowing terms, 

"Passage is innocent so long as it is not prejudicial to the 
peace, good order or security of the coastal State. Such pas- 
sage shall take place in conformity with these articles and 
with other rules of international law." 33 

On the other hand, the International Law Commission phrased its 
article in terms which placed emphasis upon the commission of acts, 
not the mere passage itself, concluding, 

"Passage is innocent so long as a ship does not use the 
territorial sea for committing any acts prejudicial to the se- 
curity of the coastal State or contrary to the present rules, or 
to other rules of international law." 34 

It is clear that the Passage of The Queen Bee through State A's 
territorial sea was innocent under the definition of the International 
Law Commission because she did not commit any act during the 
passage which in any way could be considered prejudicial to State 
A's security. 

The question remains as to whether the passage of The Queen 
Bee was prejudicial to the "peace, good order or security" of the coastal 

33 Art. 14(4). 

34 U.N. Doc. A/3159, 19 (1956) . 



149 

state. What constitutes prejudicial passage is not denned in the 
Convention, nor is there any indication as to whether there must 
be a direct causation between the passage and the prejudice to the 
"peace, good order, or security" of the coastal state. If States A and 
B were at war, then it would be logical to assume that the passage 
of a ship through State A's territorial sea with military cargo bound 
for State B would be prejudicial to State A's "peace, good order or 
security" (quite likely to all three) . 

Here, however, despite certain frictions between the two states, 
there is no indication that the military cargo on The Queen Bee bound 
for State B is to be used at some future time against State A and is 
therefore prejudicial, though remotely so, to the "peace, good order 
or security" of State A. This being the case, it is difficult to see how 
State A can lawfully forbid the passage of all ships through her 
territorial sea carrying military cargo bound for State B. 

D. EVENT IV (Coastal state's jurisdiction in territorial sea over 
foreign fishing vessel.) 

A number of questions are involved in Event IV. First, did the 
fishing vessel, The Pelican, violate its right of innocent passage in 
State A's territorial sea by (a) traversing the territorial sea ap- 
proximately one mile landward of the customary sea lane, (b) pro- 
ceeding slowly, (c) with fishing nets on board but not secured in 
accordance with the regulations of State A, and (d) taking handline 
soundings and sea bed samples? 

It appears that The Pelican was conforming to the provisions of 
the Convention in accordance with the definition as provided in 
Article 14 (2) in that she was navigating through the territorial sea 
for the purpose of traversing that sea without entering internal 
waters. Nothing in the convention, or in international law regarding 
the right of innocent passage requires that the overseas ship follow 
a particular sea lane within the territorial sea or be a certain distance 
from the shore, absent specific regulations of the coastal state to in- 
sure safety of navigation, or for some other justifiable purpose. The 
facts do not indicate the presence of any such regulations. Nor 
does "passage" require that the ship travel at a minimum speed. 
In fact, it may even stop and anchor if such is incidental to the 
passage. 

Therefore, the real question is whether the passage of The Pelican 
was "innocent," in view of (a) the fact that the fishing nets, although 
on board, were not secured in accordance with the regulations of 
State A and/or (b) the fact that crew members were taking 
soundings. 



150 

The Convention contains a specific provision relating to the 
"innocence" of foreign fishing vessels, as follows : 

"Passage of foreign fishing vessels shall not be considered 
innocent if they do not observe such laws and regulations as 
the coastal State may make and publish in order to prevent 
these vessels from fishing in the territorial sea." 35 (emphasis 
added.) 

Two things should "be noted about this provision. First, it was 
added at the Conference partly at the urging of Yugoslavia 36 and 
the United Kingdom, 37 both of whom introduced proposals for an 
amendment to the International Law Commission's draft articles. 
The Yugoslav delegate pointed out that fishing vessels presented a 
special problem in relation to the right of innocent passage because 
some were equipped with very modern gear that could be lowered 
and taken up rapidly, so that it might be difficult to prevent their 
fishing in the territorial sea of another State while ostensibly 
traversing it for navigational purposes only. 38 

Secondly, it should be noted that Article 14 (5) of the Convention 
establishes a special requirement for "innocence" of fishing vessels 
and in doing so it creates confusion regarding the provision immedi- 
ately preceding in Article 14 (4) which says that "passage is innocent 
so long as it is not prejudicial to the peace, good order or security of 
the coastal State." If fishing by a foreign vessel in the territorial 
sea is considered to be prejudicial to the "peace, good order or secu- 
rity" of the coastal state then the special requirement regarding the 
"innocence" of fishing vessels is redundant. (It would certainly seem 
that fishing by a foreign vessel in the territorial sea of a coastal State, 
which is a violation of sovereignty, is definitely prejudicial to the 
"good order" of the coastal State.) On the other hand, if fishing by 
a foreign vessel by some semantic choreography is not considered to 
be prejudicial to the "peace, good order or security" of the coastal 
state, then it would have been less confusing if the basic definition of 
"innocence" had been broadened to include "economic well-being" 
along with "peace, good order or security." 

Despite this confusion in and inadequacy of draftsmanship the im- 
portant fact for our purpose is to note that the reason for the special 
provision in the Convention regarding passage of fishing vessels 
through the territorial sea was to prevent them from fishing, since 
the coastal state has the universally-recognized exclusive right to fish 
in those waters. 



35 Art. 14(5). 

36 U.N. Doc. A/CONF 13/C. 1/L. 17 (1958). 

37 U.N. Doc. A/CONF. 13/0. 1/L. 132 (1958). 

38 3 Official Records (A/CONF. 13/39, 76 (1958) ). 



151 

The question then is to decide whether The Pelican volated its right 
of innocent passage just because she did not conform to the exact 
regulations promulgated by State A, even though its nets were on 
board and hence not in a position to fish. This is a hard question. 
On the one hand the coastal state has the right under the Convention, 
and apart therefrom, to insure that foreign vessels do not fish in its 
territorial sea. Reasonable regulations of a coastal state requiring 
the securing of fishing equipment are a means for accomplishing that 
end. Hence, if the regulations are reasonable a material violation 
thereof would constitute a breach of innocent passage. 

On the other hand, if the foreign vessel in fact has her nets out of 
the water, with her holds full of fish and no indication of intention to 
fish, should it be considered a violation of innocent passage merely 
because of what might be a "technical" violation of a precise regula- 
tion of the coastal state regarding the securing of fishing gear? 

It would appear somewhat more just to conclude that The Pelican 
was not violating the right of innocent passage. She had made an 
effort to secure her fishing nets even though not conforming exactly 
to the regulations prescribed by State A to prevent fishing in the 
territorial sea. This conclusion appears more valid than holding that 
The Pelican violated the rule of "innocent passage," notwithstanding 
some justifiable suspicions on the part of State A resulting from the 
actions of The Pelican in traversing the territorial sea one mile land- 
ward of the customary sea lane and cruising slowly late in the 
afternoon. 

The next question is whether the taking of hand-line soundings was 
a violation of "innocent passage." It is submitted that it was not 
because the taking of soundings either in the manner indicated here 
or by some other mechanical or electronic device is a normal incident 
to navigation. Thus, the fishing vessel was within its rights in taking 
the soundings, notwithstanding the suspicious circumstances surround- 
ing the action. 

On the other hand, it seems reasonable to conclude that The Pelican 
was violating "innocent passage" in having her crew take sea bed 
samples since this action is not a normal incident to navigation. 
Moreover, under the circumstances in the case, the sea bed samples were 
probably being taken for the purpose of mapping the submarine ter- 
rain or some other ulterior purpose unconnected with mere passage. 

Of course, it might be argued that the sea bed samples were being 
taken for purposes of "fundamental oceanographic or other scientific 
research carried out with the intention of open publication," in ac- 
cordance with Article 5(1) of the Convention on the Continental 
Shelf. The two rather obvious counter arguments are (a) that the 
above Article applies only to such research outside of the territorial 



152 

sea, and (b) that it is somewhat unlikely that such research would 
be conducted by the crew of a fishing vessel. 

Therefore, State A was justified in escorting The Pelican outside 
the six-mile limit. 

The next question is whether State A had the right under the 
Convention to visit and search The Pelican in order to determine 
whether there was a breach of the rules of innocent passage. 

As a general rule during peacetime the vessels of one country 
may not be visited and searched by the warships of another country 
on the high seas. In the territorial sea such visit and search may 
occur only if there exists "probable cause" for suspicion. During 
war the rule is contrary as to the high seas ; the belligerent is entitled 
to visit and search all merchant ships, "the right growing out of, 
and ancillary to, the greater right of capture." 39 

However, the Convention on the Territorial Sea and Contiguous 
Zone contains an express provision that "the coastal State may take 
the necessary steps in it's territorial sea to prevent passage which is 
not innocent." 40 The question then narrows down to whether the 
action of State A was a "necessary step" to prevent what she suspected 
was not "innocent" passage. 

The facts do not indicate whether State A's warships first com- 
municated to The Pelican, prior to the boarding, in an attempt to 
ascertain why the fishing vessel was taking soundings and otherwise 
doing things which gave rise to suspicions regarding the innocence 
of her passage. Normally, the action of boarding for a visit and 
search would be justified only after the vessel refused to answer 
questions as to her actions which appeared to be violative of innocent 
passage. 

Here again we find that the coastal state must reach a proper 
balance between its right to take necessary steps in its territorial sea 
to prevent passage which is not innocent and its duty not to hamper 
innocent passage through the territorial sea. 

In the present instance, since The Pelican was delayed by State 
A's warship for only thirty minutes, during which time she 
would have traversed only two additional miles at her slow cruising 
speed at the time, it may be concluded that the visit by the warship 
did not hamper The Pelican's innocent passage, assuming for the 
moment that it was innocent. Hence, even though the boarding of 
The Pelican normally should not have been made until she had re- 



39 The Nereide, 9 Cranch. 338, 427 (1815) ; The Maria 1 C. Rob. 340, 360 
(1799) ; 3 Hyde, International Law 1958-1964 (2nd ed., 1945) ; 7 HacJcworth, 
Digest of International Law 175-178 (1944) ; Colombos, Op. cit., footnote 30 (at 
615). 

40 Art. 16(1). 



153 

fused to answer satisfactorily questions as to her actions, State A's 
action in making the visit may be justified as a "necessary step" to 
prevent passage through her territorial sea which, we concluded 
earlier with respect to the taking of sea bed samples, was not innocent. 

As to the search by the officers of State A's warship, this action 
appears to have been unjustified under the facts of the case. It was 
hardly necessary to search The Pelican in order to find out why the 
soundings and sea bed samplings were being taken and why the vessel 
was cruising more slowly than normal one-mile landward of the cus- 
tomary sea lane. This information probably could have been secured 
by asking questions during the visit unless officers of The Pelican re- 
fused to answer, or gave what appeared to be false or evasive answers. 

Of course, it is possible that a search might have been required to 
determine whether the fishing gear had been secured as required by 
State A's regulations, and whether the suspicions that The Pelican was 
planning to fish in State A's territorial sea after dark were justified. 
However, even here it would appear that proper interrogation during 
the visit would have sufficed, without a physical search of the vessel. 
This is not to say that a boarding party is limited to a visit and may 
never search. On the contrary, a search would be justified and law- 
ful whenever the boarding party has not received satisfactory answers 
to its questions or, despite the answers, it honestly believes that a 
search is a "necessary step" to determine whether the vessel is in fact 
violating the right of innocent passage. 

Under the facts presented here it may be concluded that the search 
of The Pelican was not justified under international law or under the 
Convention as a "necessary step" to prevent a violation of innocent 
passage. 

EVENT IV (Jurisdiction of Coastal State over a criminal, citizen 
of coastal state, aboard foreign vessel) • 

The final question is whether State A had any right to exercise 
criminal jurisdiction on board The Pelican in arresting Mr. K., a 
citizen of State A, who had committed prior crimes. 

Here the language of the Convention indicates emphatically that 
State A was without jurisdiction, even though Mr. K. was a citizen 
of State A. 

"The coastal State may not take any steps on board a 
foreign ship passing through the territorial sea to arrest any 
person or to conduct any investigation in connection with any 
crime committed before the ship entered the territorial sea, 
if the ship, proceeding from a foreign port, is only passing 

607631—61 11 



154 

through the territorial sea without entering internal 
waters." 41 (emphasis added) 

Since the crimes of Mr. K. had been committed before the ship 
entered the territorial sea, the officers of the warship were not entitled 
to exercise criminal jurisdiction on board The Pelican. 

Moreover, in order to indicate generally the strict limitations under 
the Convention of the coastal state's right to exercise criminal juris- 
diction on board a foreign ship passing through the territorial sea 
it should be noted that even if Mr. K. had committed a crime on board 
the ship during its passage, criminal jurisdiction could not be exercised 
except in the following cases : 

"(a) If the consequences of the crime extend to the coastal 
State ; or 

(b) If the crime is of a kind to disturb the peace of the 
country or the good order of the territorial sea ; or 

(c) If the assistance of the local authorities has been re- 
quested by the captain of the ship or by the consul of the 
country whose flag the ship flies ; or 

(d) If it is necessary for the suppression of illicit traffic 
in narcotic drugs." 42 

It may be concluded that State A violated the Convention on the 
Territorial Sea and Contiguous Zone in arresting Mr. K. on board The 
Pelican and removing him. It matters not that the presence of Mr. 
K. on board the fishing vessel was accidentally discovered. State A's 
exercise of criminal jurisdiction would have been equally in violation 
of the Convention even though it had been known that Mr. K. was 
aboard The Pelican. 

E. GENERAL CONCLUSION WITH RESPECT TO THE RIGHT 
OF INNOCENT PASSAGE THROUGH THE TERRITORIAL 

SEA 

It is often difficult to strike an equitable and just balance between 
the coastal state's right to prevent passage through its territorial sea 
which is not innocent and the competing right of overseas states to 
enjoy the right of innocent passage, both for their merchant vessels 
and their warships. In the troubled, insecure world in which we now 
live interpretations of the Convention on the Territorial Sea and 
Contiguous Zone by writers, and by judicial and other decision-makers 
in case of disputes, such as the hypothetical situations given above, 
will probably tend to favor the coastal state's regulations and actions 
if they appear at all reasonable as a security measure. 

41 Art. 19(5). 

42 Art. 19(1). 



155 

While one may understand the present tendency to weight the scales 
slightly in favor of the coastal state in this matter of the right of 
innocent passage, one may hope, without predicting that in time ten- 
sions among competing claimants in the world arena will have eased 
to the extent that all disputes will be settled at the negotiation table, 
in an arbitral tribunal, or in the International Court of Justice. In 
such a period of relaxed world tension the "necessary steps" which 
the coastal state would have to take in order to prevent passage which 
is not innocent but instead is prejudicial to its "peace, good order or 
security" would be minimal and the scales could then be weighted in 
favor of the overseas state's right to enjoy innocent passage free from 
numerous protective regulations and actions by the coastal state which 
in varying degrees are bound to hamper passage through the terri- 
torial sea. 

Stated another way, given world conditions in which passage 
through the territorial sea both for merchant vessels and warships is 
more likely to be "innocent" than is the case today, the coastal state 
will have far less need to take as many, or as severe, "necessary steps" 
to prevent non-innocent passage, even though the right of the coastal 
state to take those steps must always be recognized and guaranteed 
either under a Convention or under the inherent right of self-defense. 

That the articles of the Convention on the Territorial Sea and 
Contiguous Zone tend to favor the coastal state in regard to the "right 
of innocent passage" can be documented. It is hoped that the analysis 
of the problem situations has served as a partial documentation. 
Similarly, as discussed elsewhere, the record of the entire Conference, 
including the other three Geneva Conventions of 1958, indicates a 
rather decided tendency to favor the coastal state on many other 
matters. 43 

This tendency is understandable in view of a variety of motivating 
forces in the world, some of them inimical to the free world, but, by 
and large, it is an unfortunate trend because in the long run the maxi- 
mum utilization of the world's greatest common resource — the seas — 
can be achieved only by what has been wisely and succinctly sum- 



43 Note, for example (a) the strong sentiment toward increasing the breadth 
of the territorial sea to six miles, (b) the vote of the First Committee in favor 
of a 12-mile exclusive fishing zone even though this proposal failed in plenary 
meetings, (c) the recognition of the special interests of the coastal state in the 
Convention on Fishing and Conservation of the Living Resources of the High 
Seas, (d) the exclusive rights accorded the coastal state to explore and exploit 
continental shelf resources and (e) the increase in the closing line for bays from 
the widely accepted ten miles, at least prior to the dictum in the Anglo- 
Norwegian Fisheries Case (see footnote 1), to fifteen miles in the I.L.C. draft 
articles, to twenty-four miles in the Convention on the Territorial Sea (Art. 
7(4)). 



156 

marized as an "explicit weighting of the balance of decision in favor 
of inclusive rather than exclusive uses." 44 

Every time the coastal state is accorded, or attempts to usurp, the 
right to push seaward "a new extension of state competence," 45 there 
must be of necessity a corresponding diminution in the vigorous, 
productive principle of freedom of the high seas which has served for 
three centuries to keep the channels of navigation, communication, 
and commerce open to all users in a shrinking world whose increas- 
ingly interdependent states can survive and prosper only when such 
channels are open. 

Whether one is concerned with the application of the right of 
innocent passage to a problem situation, or with some other article 
of one of the four Geneva Conventions of 1958, it is well to scrutinize 
carefully every regulation promulgated and every action taken by 
the coastal state to see that the overriding principle of freedom of 
the seas suffers the least possible infringement commensurate with 
the justifiable need of the coastal state to protect itself. As with 
human liberty, the price of freedom of the seas is eternal vigilance, 
particularly vigilance against duly constituted authority. 

44 McDougal and Burke, "Crisis in the Law of the Sea : Community Perspec- 
tives versus National Egoism," 67 Yale Law Journal 539, 588 (1958) . 

45 Garcia Amador, The Exploitation and Conservation of The Resources of 
the Sea, 13 et. seq. (1959). I have borrowed his apt expression, "new extensions 
of state competence" but not his conclusions which are generally contrary to 
mine. Note, for example, his attempt to justify the Santiago Declaration of 
Chile, Ecuador and Peru claiming "exclusive sovereignty and jurisdiction" over 
a 200-mile belt of high seas adjacent to their coasts. (Ibid., at 76.) 



CHAPTER V 

HIGH SEAS PROBLEM SITUATIONS 

A. PROBLEM 1 : Right to Board and Inspect a Foreign Vessel on 
the High Seas Thought To Be Guilty of Damaging Transatlantic 
Cables 

The facts and several of the issues of this problem — an actual 
case — are set forth in an exchange of notes between the United States 
and the Soviet Union during February and March, 1959. (See 
below.) In reading this exchange of notes it will be well to keep 
in mind certain pertinent provisions of the 1958 Geneva Convention 
on the High Seas, 1 which had been signed by both the United States 
and the U.S.S.R. prior to the incident. 2 

Article 2 of the Convention on the High Seas enumerates, among 
others, the freedom to lay submarine cables and pipelines. The article 
also includes a corollary duty in providing that this freedom (as well 
as the others which are enumerated and additional ones required by 
international law) "shall be exercised by all States with reasonable 
regard to the interests of other States in their excercise of the free- 
dom of the high seas." 3 The essence of this provision is that each 
user of the high seas must accommodate every other user in order to 
have the least possible interference among all users commensurate 
with the maximum utilization of the high seas. 

Hence, the article provides for certain enumerated rights (i.e., 
"freedoms") on the high seas, both for coastal and non-coastal states, 
and at the same time expresses a general duty or obligation of each 
state which exercises those rights to be reasonable in doing so. 
Reasonableness in the context of the problem situation here, involving 
damage to five submarine cables by a trawler, means that in exercising 
its right to fish in the high seas, the fishing vessel must not wilfully or 
negligently damage the cables. This is the minimum standard of 
duty to which the trawler may be held, and it should be noted that 
Article II of the 1884 Convention For the Protection of Submarine 



1 U.N. Doc. A/CONF. 13/L. 53 and corr. 1 (1958) . 

2 See Appendix J, p. 264. Although both states have signed the Convention 
on the High Seas, neither had ratified it at the time of the incident. 

3 See Appendix B for a complete text of the Convention on the High Seas. 

157 



158 

Cables 4 to which both the United States and the U.S.SR. are parties, 
expressly establishes this duty by making a wilful or culpably negli- 
gent damage to the submarine cable a punishable offense. 5 

Articles 26 to 29, inclusive, of the Convention on the High Seas also 
contain provisions relating to submarine cables which should be kept 
in mind in analyzing the exchange of notes between the United States 
and the Soviet Government : 

"Article 26 

"1. All States shall be entitled to lay submarine cables and 
pipelines on the bed of the high seas. 

"2. Subject to its right to take reasonable measures for the 
exploration of the continental shelf and the exploitation of its 
natural resources, the coastal State may not impede the laying 
or maintenance of such cables or pipelines. 

"3. When laying such cables or pipelines the State in ques- 
tion shall pay due regard to cables or pipelines already in 
position on the seabed. In particular, possibilities of repair- 
ing existing cables or pipelines shall not be prejudiced. 

"Article 27 

"Every State shall take the necessary legislative measures 
to provide that the breaking or injury by a ship flying its 
flag or by a person subject to its jurisdiction of a submarine 
cable beneath the high seas done wilfully or through culpable 
negligence, in such a manner as to be liable to interrupt or 
obstruct telegraphic or telephonic communications, and sim- 
ilarly the breaking or injury of a submarine pipeline or high- 
voltage power cable shall be a punishable offence. This 
provision shall not apply to any break or injury caused by 
persons who acted merely with the legitimate object of saving 
their lives or their ships, after having taken all necessary 
precautions to avoid such break or injury. 

"Article 28 

"Every State shall take the necessary legislative measures 
to provide that, if persons subject to its jurisdiction who are 
the owners of a cable or pipeline beneath the high seas, in 
laying or repairing that cable or pipeline, cause a break in or 
injury to another cable or pipeline, they shall bear the cost 
of the repairs. 



*24 Stat. 989, 25 Stat. 1424. For the text of the pertinent sections of the 
Convention for the Protection of Submarine Cables (1884), see infra, p. 165. 
5 IUd., at Art. II. 



159 

"Article 29 

"Every State shall take the necessary legislative measures 
to ensure that the owners of ships who can prove that they 
have sacrificed an anchor, a net or any other fishing gear, in 
order to avoid injuring a submarine cable or pipeline, shall 
be indemnified by the owner of the cable or pipeline, pro- 
vided that the owner of the ship has taken all reasonable 
precautionary measures beforehand." 

EXCHANGE OF NOTES BETWEEN UNITED STATES AND 
SOVIET GOVERNMENT ON DAMAGE TO SUBMARINE 
CABLES FROM FEBRUARY 21 TO 25, 1959 6 

U.S. Aide Memoire of February 28, 1959 

The Embassy of the United States of America has been instructed 
to inform the Ministry of Foreign Affairs of the Union of Soviet 
Socialist Republics of the following : 

Between February 21-25, 1959, four telegraph and one voice trans- 
atlantic cables were damaged and put out of service. Aerial in- 
vestigation disclosed that the Soviet trawler NOVOROSSIISK No. 
RT-99 was in the area of these cable difficulties. 

In accordance with the "Convention for Protection of Submarine 
Cables" of 1884, to which the Soviet Union and the United States are 
parties, a U.S. naval vessel put a visiting party on board the 
NOVOROSSIISK on February 26 to investigate whether the trawler 
had violated the Convention. 

After discussion with the Trawler Captain and examination of the 
log, the boarding officer from the U.S.S. R. O. HALE made an 
appropriate entry in the journal of the trawler as required by Article 
X of the Convention and the visiting party left the vessel. The 
trawler's log indicated that the ship had been in the area of cable 
damage at the time of the last service interruption. It is understood 
that the trawler proceeded on its way without delay. 

A cable repair ship is en route to the area of cable damage for final 
investigation and repair. 

Soviet Note of March 4, 1959 

The Ministry of Foreign Affairs refers to the aide memoire of the 
United States Embassy of February 28 concerning the detention and 
inspection of the Soviet trawler NOVOROSSIISK on February 26 
by an American vessel and considers it necessary to declare the 
following : 

State Dept. Bull. Vol. XL No. 1034, pp. 555-558, (April 20, 1959) . 



160 

According to information available to competent Soviet 
organs, the Soviet trawler NOVOROSSIISK was engaged 
in fishing in the open sea in the Northern Atlantic Ocean and 
caused no damage of any kind to the underwater telegraph 
or telephone Trans- Atlantic cables. Reports concerning this 
question appearing in the American press are figments of 
the imagination. 

Consequently, the American naval vessel R. O. HALE had 
no reason for detaining and inspecting the aforementioned 
Soviet trawler. Attention must be called to the fact that 
these actions of the American authorities were undertaken 
specifically with respect to a Soviet vessel at a time in the 
region of Newfoundland when there were hundreds of ves- 
sels from other countries engaged in fishing and, as reported, 
many of which have more than once damaged Trans- 
Atlantic cables. 

The Soviet Government cannot ignore the fact that in 
connection with the above-indicated actions of the United 
States authorities numerous reports have appeared in the 
American press containing various anti-Soviet fabrications 
concerning the purpose of the presence of a Soviet fishing 
vessel in this region. These articles in the American press 
are of such a kind that the impression is unavoidable that all 
this venture with the detention of the Soviet trawler was 
undertaken with provocative purposes. Not the least among 
these purposes is an attempt to strain Soviet- American rela- 
tions. It is impossible in this connection not to draw atten- 
tion to the responsibility which the American Government 
takes upon itself by taking such steps. 

The Soviet Government protests against the detention and 
inspection of the Soviet fishing trawler NOVOROSSIISK 
by the American naval vessel and anticipates that the Gov- 
ernment of the United States will take all necessary measures 
to prevent further such completely unjustified actions with 
respect to Soviet fishing vessels engaged in the fishing trade 
in waters of the open sea. 

U.S. Note of March 23, 1959 

The Embassy of the United States of America refers to the Min- 
istry's note No. 1Y/OSA, dated March 4, 1959 concerning recent breaks 
in certain transatlantic submarine tele-communication cables and the 
consequent visit to the Soviet trawler NOVOROSSIISK by a board- 
ing party of the U.S.S. ROY O. HALE, which was the subject of 
the Embassy's aide memoire of February 28, 1959. 



161 

The Ministry's note states in substance that the Government of the 
Union of Soviet Socialist Republics (1) in accordance with informa- 
tion available to it denies that the Soviet trawler NOVOROSSXISK 
was responsible for the reported breaks in the transatlantic sub- 
marine cables; (2) that in its opinion the United States naval vessel 
U.S.S. ROY O. HALE had no reason to detain and inspect the 
Soviet trawler NOVOROSSXISK; and (3) that based on articles 
which have appeared in the American press concerning the purpose 
of the presence of a Soviet fishing vessel in this region the deten- 
tion of the Soviet trawler was undertaken with "provocative pur- 
poses." The note concludes that "The Soviet Government protests 
against the detention and inspection of the Soviet fishing trawler 
NOVOROSSXISK by the American naval vessel and anticipates 
that the Government of the United States will take all necessary 
measures to prevent further such completely unjustified actions with 
respect to Soviet fishing vessels engaged in the fishing trade in waters 
of the open sea." 

For the reasons set out hereinafter the United States Government 
considers there is no basis for a protest in this case and the Soviet 
protest is therefore rejected. Furthermore, the United States Gov- 
ernment is surprised that the Soviet Government should make a 
charge that the detention of the Soviet trawler was for "provocative 
purposes" with no other basis than apparent irritation at articles in 
American newspapers speculating on the purposes of Soviet trawlers 
in certain waters. As the Soviet Government well knows, the Amer- 
ican press is free within legal limits to publish its opinions and these 
do not engage the responsibility of the Government. Charges based 
on such flimsy support are not themselves calculated to further 
friendly relations. 

The facts of the matter are as follows: 

During the period February 21 through February 25, 1959, com- 
munications were disrupted by damage to five transatlantic cables in 
the Newfoundland area located within a rectangle bounded by the 
following coordinates: 

latitude 49°24' N., longitude 50°12' W.; 
latitude 49°32' N., longitude 49°48' W.; 
latitude 50°13' N., longitude 51°00' W.; 
latitude 50°22' N., longitude 50°36' W. 

The first break occurred on February 21, 1959, at 10 :43 a.m., east- 
ern standard time, in the transatlantic cable owned and operated in 
part jointly with a Canadian company by the American Telephone 
and Telegraph Company, a United States corporation having its 
head office at New York, New York. The cable has its west terminus 



162 

in Newfoundland and the east terminus in Scotland, and it ultimately 
connected with the United States of America by submarine cable and 
radio relay. 

The second break occurred on February 24, 1959, at 2:20 p.m., 
eastern standard time, in the transatlantic cable 1-VA, connecting 
Newfoundland and Ireland. The third break occurred on February 25 
at 2:50 a.m., eastern standard time, in the transatlantic cable 3-PZ 
connecting Newfoundland and England. The fourth cable break 
occurred on February 25 at 11:20 a.m., eastern standard time, in 
cable 2-VA connecting Newfoundland with Ireland. The fifth break 
occurred on February 25 at 4 :20 p.m., eastern standard time, in the 
transatlantic cable 4-PZ connecting Newfoundland and England. 
These four submarine cables connect ultimately with the United 
States, and are owned and operated by the Western Union Telegraph 
Company, a United States corporation with its head office at New 
York, New York. 

Subsequent examination showed that there were a total of twelve 
breaks in the five cables. Nine of these were tension breaks and three 
were man-made cuts severing the cables. 

Aerial observation conducted by the American Telephone and Tele- 
graph Company sighted the Soviet trawler NOVOROSSIISK 
RT-99 on the morning of February 25, 1959, in the approximate 
position latitude 49°34' N. and longitude 50°00' W., steaming on a 
southerly course at a speed of about three knots. No other vessels 
were visible at the time in the immediate vicinity. The aircraft suc- 
ceeded in dropping a note on the deck of the trawler NOVOROS- 
SIISK advising that it cease trawling in the area. 

The Government of the United States, acting under the provisions 
of Article X of the Convention for the Protection of Submarine Ca- 
bles, of 1884, to which both the United States and the Union of So- 
viet Socialist Republics adhere, and also in conformity with United 
States law (47 United States Code, Section 26), implementing the 
convention, on February 25, 1959, dispatched the United States radar 
picket escort U.S.S. ROY O. HALE to the area to investigate the re- 
ported breaks in the submarine cables. On February 26, 1959, about 
11 :55 a.m., eastern standard time, the Commander of the U.S.S. ROY 
O. HALE sent a party consisting of one officer and four enlisted men, 
without arms, aboard the Soviet trawler NOVOROSSIISK. At the 
time of the visit the trawler was in position latitude 48°26' N., longi- 
tude 49° 10' W. There were no other ships in the immediate vicinity. 

The last four cable breaks referred to above were all located within 
14 miles of each other and were each within a 12-mile radius of the 
observed position of the trawler NOVOROSSIISK on February 25, 



163 

1959, with the nearest two breaks no more than five miles distant. 
The five reported cable breaks all occurred within a radius of 52 miles 
of one another. (All references are to nautical miles.) A line join- 
ing the last four reported positions of the breaks is a straight line with 
the breaks occurring in succession in the direction of approximately 
160° T. A vessel in that vicinity trawling in a general southerly di- 
rection during the period in question would have been in the locations 
necessary to cause the breaks. 

The boarding officer, communicating by means of French through 
an interpreter, duly informed and explained to the master of the traw- 
ler NOVOROSSIISK the purpose of his visit and his authority to do 
so under the provisions of the convention of 1884. He examined, with 
the consent and acquiescence of the master, the papers of the trawler 
which appeared to be in order. 

The boarding officer found that the latitude and longitude which the 
trawler NOVGROSSIISK recorded in her journal for the previous 
days' positions also showed her to have been in the immediate vicinity 
of all five cable breaks. Upon request, the master produced the mes- 
sage dropped on the deck of the trawler on the previous day from 
the aircraft of the American Telephone and Telegraph Company. 
On the basis of the foregoing evidence, the boarding officer concluded 
that an examination of the fishing gear and equipment was justified 
to determine whether the trawler was capable of causing the cable 
breaks. 

The unarmed boarding officer, with the consent of the master of the 
trawler, observed without deep examination, on the upper deck of the 
trawler only, the trawling equipment and fishing gear. The board- 
ing officer noted that the trawling equipment was of the type for deep 
sea fishing, and was in general fairly new, with the exception of the 
otter boards and net discs which were well worn and in poor condition. 
The trawling cable was estimated to be about 300 fathoms in length, 
sufficiently long enough to drag the gear on the bottom at the depth in 
the area — about 180 fathoms. Two broken sections of trawling cable 
each about 60 feet in length were observed wrapped around the hatch 
on deck. The four ends of these cables were shredded and frayed and 
appeared to have parted as a result of a sudden strain such as could 
have been caused by snagging the gear. These sections are identical 
in type, age, and condition with the trawling cable. Some of the fish 
observed lying frozen on deck were of the bottom type. 

The visit on board the trawler lasted about 70 minutes, and was 
completed at 1 :05 p.m., eastern standard time. At the time of his de- 
parture the boarding officer made the following entry in the trawler's 
journal: 



164 

1355— The NOVOROSSIISK (RT-99) motor vessel this date 
has been visited by me at Longitude 49° 10' W., Latitude 48°26' 
N., and at 1355 (time+3) 26 February 1959. I have examined 
the ship papers and found them to appear regular, but the pres- 
ence of a message drop regarding cut "submarine" cables signed 
by Capt. R. Cooper, A/C CF-CPR indicated further investiga- 
tion of fishing equipment required. All papers sighted bear my 
signature. The Captain consented to such further inspection but 
appeared dubious of the number of men to inspect. 

/s/ D. M. Sheely 
Lt., U.S. Navy 
1440 — Completed Inspection and departed. 

/s/ D. M. Sheely 
LT., U.S. Navy 

A preliminary report emanating from the cable repair ship LORD 
KELVIN which has since repaired the first broken cable states that 
the eastern portion of the damaged cable had been badly scraped 
and scuffed for about a mile east of the break. The cable had been 
severed by cutting. The technical opinion is that such evidence indi- 
cates that a trawler had picked up the cable with its drag, then having 
pulled it on deck, had cut it to release the nets. 

The protection of submarine telecommunications cables on the high 
seas constitutes an international obligation. The locations and pres- 
ence of the transatlantic submarine cables that have been cut are 
widely known among world fishing and maritime circles. They are 
shown and marked on United States admiralty and navigation maps 
which are available to the general public. 

The above-stated record of events shows that, contrary to the as- 
sertions and charges made in the above-mentioned note of the Union of 
Soviet Socialist Republics, the visit to the Soviet trawler NOVOROS- 
SIISK under the circumstances shown was entirely justified and was 
in every respect in accordance with international law and applicable 
treaty provisions. 

The Government of the United States is satisfied that the evidence 
in its possession raises a strong presumption that the master and crew 
of the Soviet trawler NOVOROSSIISK have violated Article II of 
the convention of 1884 above-mentioned which provides that "the 
breaking or injury of a submarine cable, done wilfully or through 
culpable negligence, and resulting in the total or partial interruption" 
of telegraphic communication shall be a punishable offense. 

Article VIII et seq. of the convention place the responsibility for 
the repression of these violations of the convention and trial and 
punishment of the violators on the Soviet Union. Therefore, the 



165 

Government of the United States calls upon the Government of the 
Union of Soviet Socialist Republics to discharge its international ob- 
ligations as summarily as its laws and regulations will permit, by 
promptly making such investigations and taking such measures as 
are necessary to punish those who may be found to be guilty. 

The Government of the United States reserves the right to make 
such claims for damages as may be found to be warranted. 

The Government of the United States further expects that the 
Government of the Union of Soviet Socialist Republics will take 
effective measures to prevent Soviet fishing trawlers on the high 
seas from damaging or cutting submarine cables in the future. 

The Government of the United States further states that it will 
continue to fulfill its international obligations with regard to the pro- 
tection of submarine cables. 

CONVENTION FOR PROTECTION OF SUBMARINE CABLES 

(1884) 

ARTICLE I 

The present Convention shall be applicable, outside of the territorial 
waters, to all legally established submarine cables landed in the ter- 
ritories, colonies or possessions of one or more of the High Contract- 
ing Parties. 

ARTICLE II 

The breaking or injury of a submarine cable, done wilfully or 
through culpable negligence, and resulting in the total or partial 
interruption or embarrassment of telegraphic communications, shall 
be a punishable offense, but the punishment inflicted shall be no bar 
to a civil action for damages. 

This provision shall not apply to ruptures or injuries when the 
parties guilty thereof have become so simply with legitimate object 
of saving their lives or their vessels, after having taken all necessary 
precautions to avoid such ruptures or injuries. 

ARTICLE VIII 

The courts competent to take cognizance of infraction of this con- 
vention shall be those of the country to which the vessel on board of 
which the infraction has been committed belongs. 

It is, moreover, understood that, in cases in which the provision 
contained in the foregoing paragraph cannot be carried out, the 
repression of violations of this convention shall take place, in each 
of the contracting States, in the case of its subjects or citizens, in 



166 

accordance with the general rules of penal competence established by 

the special laws of those States, or by international treaties. 
* * * 

ARTICLE X 

Evidence of violations of this convention may be obtained by all 
methods of securing proof that are allowed by the laws of the country 
of the court before which a case has been brought. 

When the officers commanding the vessels of war or the vessels 
specially commissioned for that purpose, of one of the High Con- 
tracting Parties, shall have reason to believe that an infraction of 
the measures provided for by this Convention has been committed 
by a vessel other than a vessel of war, they may require the captain 
or master to exhibit the official documents furnishing evidence of the 
nationality of the said vessel. Summary mention of such exhibition 
shall at once be made on the documents exhibited. 

Reports may, moreover, be prepared by the said officers, whatever 
may be the nationality of the inculpated vessel. These reports shall 
be drawn up in the form and in the language in use in the country 
to which the officer drawing them up belongs; they may be used as 
evidence in the country in which they shall be invoked, and according 
to the laws of such country. The accused parties and the witnesses 
shall have the right to add or to cause to be added thereto, in their 
own language any explanations that they may deem proper; these 
declarations shall be duly signed. 

ARTICLE XI 

Proceedings and trial in cases of infractions of the provisions of 
this Convention shall always take place as summarily as the laws and 
regulations in force will permit. 

ARTICLE XII 

The High Contracting Parties engage to take or to propose to their 
respective legislative bodies the measures necessary in order to secure 
the execution of this Convention, and especially in order to cause the 
punishment, either by fine or imprisonment, or both, of such persons 
as may violate the provisions of articles II, V and VI. 

The international law questions involved in this problem are as 
follow : 7 



7 In analyzing this problem the following references will be helpful, IV 
Hackworth, Digest of International Laiv 243-247 (1940-44) ; Higgins and Co- 
lombos, International Law of the Sea 38, 262-264, 298-302; (2nd Rev. ed. 1950). 
I Hyde, International Law Chiefly as Interpreted and Applied by the United 



167 

1. Does a state with either publicly or privately owned submarine 
cables have the right to board and inspect a foreign vessel on the high 
seas when that vessel is thought to be guilty of damaging the cables 
either by intentional or culpably negligent action ? 

2. If a state has the right to board and inspect a foreign vessel 
under the above circumstances, does the right exist : 

(a) Because both states are parties to the Convention for the 
Protection of Submarine Cables (1884) ; or 

(b) Because customary international law has developed from the 
1884 Convention and/or from general state practice so that the right 
of the aggrieved state (and the corollary duty of the injuring state) 
would exist even though one (or both) of the states was not a party 
to the 1884 Convention ; or 

(c) Because the states are parties to the 1958 Geneva Convention 
on the High Seas ? 

Subsidiary questions will be discussed in connection with the basic 
questions above, such as : 

1. May a convention be interpreted in such manner as to accord 
the right to board and inspect a foreign vessel on the high seas when 
provisions of the convention do not expressly grant this right ? 

2. Does the 1884 Convention, customary international law, or the 
1958 Geneva Convention give the right to an injured state to board 
a foreign war vessel, a foreign merchant or fishing vessel which is 
publicly owned; or only a foreign merchant or fishing vessel which 
is privately owned? 

3. Is the Soviet Government bound by the provisions of the 1884 
Convention which were signed by Czarist Russia, a predecessor 
government ? 

Q. 1. Does a state with either publicly or privately owned sub- 
marine cables have the right to board and inspect a foreign vessel 
on the high seas when that vessel is thought to be guilty of damaging 
the cables either by intentional or culpably negligent action? 

International law, no less than other law, comes into existence to 
permit the world community of states to achieve certain values, among 
which is the protection against wrongful destruction of devices of 
communication owned by a state or the citizens thereof. Principles 
are formulated and rules promulgated unilaterally by states and 
accepted, modified, or rejected by other states with the result that 
eventually a body of commonly accepted principles and rules of cus- 



States 1-20, 693-695, 751-753, (1945) ; I Lauterpacht-Oppenheim, International 
Law, 587-626 (8th ed. 1957) ; II Malloy, Treaties, Conventions, International 
Acts, Protocols and Agreements Between the United States and Other Powers, 
1776-1909, 1949-1957 (1910 ed). 



168 

tomary international law develop. In other instances, these estab- 
lished principles and rules, or totally new ones, are embodied in con- 
ventions signed and ratified by a number of states which are bound 
thereby. If the conventions codify customary international law 
then the principles and rules are binding upon all states, whether 
signatory to the convention or not. 

The 1958 Convention on the High Seas, which the delegates from 
86 states at the Geneva Conference (or at least the delegates from 
the 65 states voting for the Convention) 8 agreed was codifying the 
rules of international law relating to the high seas, provides in Arti- 
cle 2 for a number of freedoms, including both "freedom of fishing" 
and "freedom to lay submarine cables and pipelines." 9 

The first question therefore may be rephrased as follows : If a state 
(Soviet Union) in the exercise of her acknowledged right to fish 
on the high seas interferes with and causes damage to the property 
of nationals of another state (United States) in the exercise of her 
equally valid right to lay, operate and maintain submarine cables, 
which right, if either, shall prevail over the other and what duties 
does each state owe to the other to safeguard the other's interests and 
rights ? 

In this problem situation both the United States and the Soviet 
Union are inclusive users of a common resource — the high seas. 
But generally speaking, a right to the free use of the high seas is 
not absolute in the sense that other users may be disregarded, en- 
dangered, impeded or excluded. Indeed, the 1958 Convention on the 
High Seas specifically provides that the freedoms enumerated, and 
others which are recognized by the general principles of interna- 
tional law, "shall be exercised by all States with reasonable regard 
to the interests of other States in their exercise of the freedom of the 
high seas." 10 (emphasis added) 

Therefore, although a Soviet trawler may fish in the high seas, it 
may not do so in a manner which endangers or interferes unreason- 
ably with the right of the United States to operate and maintain 
her submarine cables. Later we shall note and discuss certain specific 
provisions of both the 1884 Convention and the 1958 Geneva Con- 
vention in relation to rights of the cable state and the corollary duties 
of the fishing state. 

First, let us review briefly the history of submarine cables in rela- 
tion to the problem at hand. When the first submarine cables were 
laid in 1851 it was only natural that states became concerned with 



8 2 Official Records (A/CONF. 13/38, 61 (1958) ). 

9 U.N. Doc. A/CONF. 13/L.53 and corr. 1, Art. 2 (2) -(3), (1958). 

10 Ibid., at Art. 2, par. 2. 



169 

the need for their protection. One theory advanced as a possible basis 
for such protection was that the doctrine of piracy, which permitted 
search and seizure of offending persons and vessels, could be extended 
to instances of willful damage to cables. A convention was proposed 
which would have embodied this concept, but it did not materialize. 

Later, an international agreement was recommended and after pro- 
tracted discussions, including rejection of the assimilation of the 
piracy doctrine to the destruction of cables, an international confer- 
ence resulted in the Paris Convention of 1884. The United States and 
the Soviet Union are parties to this Convention. 

Although the right to board and inspect a foreign vessel on the 
high seas is not specifically provided for in the 1884 Convention, the 
provisions of Article X of the Convention clearly contemplate such 
action. Article X provides in part, 

"Evidence of violations of this convention may be obtained 
by all methods of securing proof that are allowed by the laws 
of the country of the court before which a case has been 
brought." 1X 

Hence an injured state may use reasonable means to secure evi- 
dence of damages to its cables. Reasonable means would, of necessity, 
include the right to board and inspect the suspected vessel because in 
many instances it would not be possible to make a reasonably con- 
clusive determination of the cause of the damage without such board- 
ing and inspection. 

The facts at hand prior to the boarding of the Soviet vessel reason- 
ably supported the presumption that the breaks in the cables had 
resulted from the trawling activities since no other vessels were ob- 
served in the area at the times of the breaks. There was also good 
reason to believe that the breaks had been caused either by wilful or 
culpably negligent action since one of the breaks occurred in the late 
afternoon of February 25, 1959, after the aircraft had succeeded in 
dropping a note on the deck of the trawler advising it to cease trawl- 
ing in the area. 

After the boarding, the information obtained by inspection of the 
trawler's log, as well as the production by the master of the air- 
dropped message and denial of responsibility by the master, made 
further inspection by the boarding party both reasonable and neces- 
sary. The modest inspection of the trawler's upper decks and trawl- 
ing gear without deep examination of the trawler, which revealed that 
of the twelve breaks in the five cables three were man-made cuts 
severing the cables, confirmed the suspicions of the United States 
boarding party. 

11 For the complete text see supra, p. 166. 
607631—61 12 



170 

Article X of the 1884 Convention also provides that 

"When the officers (of the injured state) . . . shall have rea- 
son to believe that an infraction of the measures provided 
for by this Convention has been committed by a vessel other 
than a vessel of war, they may require, the captain or master 
to exhibit the official documents furnishing evidence of the 
nationality of the said vessel" 12 (emphasis added) 

Here again the language of the 1884 Convention clearly implies the 
right to board the suspected vessel because there is no other way to 
require the captain or master to exhibit the official documents furnish- 
ing the evidence of the nationality of the vessel, other than requesting 
the captain to leave his ship and go aboard the inspecting ship. Noth- 
ing in the Convention or in international law would permit the inspect- 
ing ship to make such a request under the circumstances of the case. 
Thus, a visit by a boarding party of the inspecting ship to the trawler 
would be the only way to exercise the right granted to the inspecting 
ship under Article X. It should also be noted that Article X requires 
the boarding officer to make "summary mention of such exhibition . . . 
at once ... on the documents exhibited," 13 an action which in most 
instances could only take place with the documents at hand and on 
board the suspected vessel. 

Thus, it may be concluded that under the 1884 Convention for the 
Protection of Submarine Cables, the United States had a right to 
board and inspect the Soviet trawler in the manner in which it was 
done, the boarding party having conformed to all requirements of the 
Convention. 

Q. 2. If a state has the right to board and inspect a foreign vessel 
on the high seas when that vessel is thought to be guilty of damaging 
the cables either by intentional or culpably negligent action, does the 
right exist, 

(a) Because both states are parties to the Convention for the 
Protection of Submarine Cables (1884) ; or 

(b) Because customary international law has developed from the 
1884 Convention and/or from general state practice so that the right 
of the aggrieved state (and the corollary duty of the injuring state) 
would exist even though one (or both) of the states was not a party to 
the 1884 Convention ; or 

(c) Because the states are parties to the 1958 Geneva Convention 
on the High Seas ? 



12 IMd. 
13 IUd. 



171 

As indicated in the discussion of Question #1, the right of a state 
to board and inspect a vessel on the high seas is clearly implied by 
Article X of the 1884 Convention. Since both the United States and 
the Soviet Union are parties to that Convention they are accorded the 
rights and are subjected to the obligations thereof. 

Of course, it might be argued that the present Soviet Government 
is a successor government to Czarist Russia which signed the 1884 
Convention and is therefore not bound by the Convention. However, 
this line of argument is without foundation for three reasons : First, 
the general rule in international law is that a change in the form of 
government of a state, or a change from one ruler or one administra- 
tion to another, does not terminate or modify its treaties. 14 Lauter- 
pacht-Oppenheim have written, 

"As treaties are binding upon the contracting States changes 
in the Government, or even in the form of government, of one 
of the parties can, as a rule, have no influence whatever upon 
the binding force of treaties." 15 

Second, in the present instance the Soviet Government failed to 
deny the applicability of the 1884 Convention, after the United States 
had invoked it in the Aide Memoire of February 28, 1959 and in the 
Note of March 23, 1959, as the basis for the claim of rights against 
the Soviet Government. The United States referred in the Aide 
Memoire to the 1884 Convention, "to which the Soviet Union and the 
United States are parties." 16 In the March 23 note the United States 
alluded to the 1884 Convention, "to which both the United States 
and the Union of Soviet Socialist Republics adhere." 17 It seems 
logical to assume that if the Soviet Union had not felt bound by the 
1884 Convention she would have said so and dropped the matter there 



"Bishop, International Law 166 (1953); 5 Hackworth, International Law 
360 (1940-1944) ; Harvard Research in International Law, Treaties, 29 A.J.I.L. 
Supp. 1044 (1935). "Unless otherwise provided in the treaty itself, the obliga- 
tions of a State under a treaty are not affected by any change in its government 
organization or its constitutional system." (Ibid., at Art. 24. ) . 

Since the Soviet Government is charged here as the injuring state, it is im- 
portant to note that at times that state has asserted its freedom from certain 
treaties concluded by prior Russian Governments, but appears to recognize the 
continuing validity as to the Soviet Union of other pre-Soviet Russian treaties. 
See Harvard Research, op. cit., 1052-54 ; Hazard, "The Soviet Union and Inter- 
national Law," 43 Illinois Law Review 591, 594 (1948) . 

15 I Lauterpacht-Oppenheim, International Law 925 (8th ed. 1957) . 

16 See text supra, Ch. V, p. 165. 

17 Ibid. 



172 

instead of claiming variously (a) that the Soviet trawler did not 
damage the cables, (b) there was no way of telling whether the Soviet 
trawler damaged the cable because other fishing vessels were in the 
area at the time and had previously damaged the cables, and (c) that 
the real purpose of the United States action and the press accounts 
thereof was a sheer fabrication to provoke the Soviet Union. 

Third, the most conclusive reason why the Soviet Government could 
not avoid responsibility under the 1884 Convention by claiming that 
it was signed by a predecessor government, long antedating the pres- 
ent government, is that the Soviet Union has in fact adhered to the 
Convention. 18 

Although not too important in our actual case because of the right 
of the United States to board and inspect the Soviet trawler under 
the 1884 Convention, the next question is worthy of serious considera- 
tion : Whether the right of a state to board and inspect a foreign vessel 
exists because customary international law has developed from the 
1884 Convention and/or from general state practice so that the right 
of the aggrieved state (and the corollary duty of the injuring state) 
would exist even though one (or both) of the states was not a party 
to the 1884 Convention ? 

Normally a treaty binds only the parties thereto under the prin- 
ciple facta tertiis nee nocent nee prosunt. Hence, third parties 
generally do not have rights (or duties) under a treaty, unless, of 
course, the treaty expressly creates rights in third parties. 19 

However, it is possible for rights and duties to exist under a treaty 
for non- signatory parties thereto in at least four ways : 

(1) If the treaty codifies customary international law, it is binding 
upon non-signatory states. Of course, it might be argued that the 
norm or law which binds the non-signatory states in this instance is 
not the treaty but the customary international law apart from the 
treaty. However, the binding force of principles and rules of cus- 
tomary international law which have been codified is generally 
greater than in the absence of such codification. 

(2) Even though a state does not sign or ratify a treaty, it may ac- 
cede to the provisions thereof later and hence be bound. 



18 The Union of Soviet Socialist Republics is listed as a "party" to this 
Convention in Treaties in Force (U.S. Department of State, Office of the Legal 
Adviser, 1959), p. 250. According to Slusser and Triska, A Calendar of Soviet 
Treaties, 1917-1957, 55 (1959) "Soviet adherence" is based on a decree of 
February 2, 1926 and was implemented, concerning internal legislation, by 
decree of March 5, 1926. 

19 1 Lauterpacht-Oppenheim, op. cit., footnote 15 (at 925-929 (and citations 
therein) ). 



173 

(3) Even though a state has not ratified or acceded to a treaty, it 
may agree in a particular case or controversy to be bound by the ob- 
ligations imposed on signatory states under the treaty, and, in certain 
instances, it may invoke the rights a treaty accorded to signatory 
states. 20 

(4) Finally, when a treaty is signed and ratified by a number of 
states and is operative for a long period of time, without objections by 
non-signatory states to its provisions it may come to represent cus- 
tomary international law even though it was not a codification of 
customary international law at the time of its adoption. 

It is the last situation above which is applicable to the question 
here. The 1884 Convention has been ratified by most of the im- 
portant maritime states of the world 21 and it has been operative for 
more than 70 years. Therefore, it seems reasonable to argue that, 
although this Convention did not represent a codification of custom- 
ary international law in 1884, in the absence of objections by non- 
signatory states, a customary law has now developed which accords 
rights to, and imposes obligations upon, all states in the world 
community in line with those expressed in the Convention. 

Moreover, apart from the long history of state practice under the 
1884 Convention, the crucial need for rapid communication in this 
interdependent world is such that the right of a cable state to lay, 
operate, and maintain submarine cables (including in exceptional 
cases the right to board and inspect foreign vessels thought to have 
damaged the cables by willful or culpably negligent action) is a 
basic right of all states in the world community. 

We must now consider the question of whether the right of the 
United States to board the Soviet trawler in the present case would 
exist if both states had ratified the 1958 Convention on the High Seas. 

An analysis of Articles 26 to 29, inclusive, of the 1958 Convention 
indicates that while they do not include an express provision for the 
obtaining of evidence by the injured state as is provided in Article X 
of the 1884 Convention, implying the right under unusual circum- 



20 For example, the United Nations charter confers upon non-member states 
a number of rights. Under Article 32 non-member states have the right to 
participate in the discussion of disputes in which they are involved ; under 
Article 35 they have the right to bring such disputes to the attention of the 
Security Council or the General Assembly; and under Article 50 non-member 
states have the right to consult the Security Council with respect to the solu- 
tion of special economic problems arising from the application of preventive or 
enforcement measures. Jimenez de Arechaga, "Treaty Stipulations in Favor 
of Third States," 50 A.J.I.L. 338 (1956) ; 2 Hyde, International Law 1466, 
(2nd Rev. Ed., 1945). 

21 Treaties in Force, Dept. of State 262 (1960) . 



174 

stances such as in the present case of the cable state to board and 
inspect the foreign vessel reasonably thought to have caused the 
damage by willful or culpably negligent action, the right of a state 
whose cables have been damaged to obtain evidence is a necessary 
requisite to the performance of its obligations under the 1958 
Convention. 

Briefly, Articles 26 and 29 of the 1958 Convention accord the state 
certain rights (for which other states have corollary duties). The 
former provides the express right to lay cables which, of course, 
carries with it the right to take whatever reasonable measures are 
necessary to operate and maintain the cables with due regard to the 
rights of other states to use the high seas. The latter (i.e., Art. 29) 
gives the state the right to recover the cost of lost fishing gear which 
has been sacrificed to avoid injuring a submarine cable (or pipeline). 

Articles 27 and 28 of the 1958 Convention impose certain duties 
(for which other states have corollary rights). Article 27 imposes 
the duty to legislate in order to make damage to cables by wilful 
or culpably negligent action a punishable offense. It should be noted 
at this point that the 1958 Convention, unlike the 1884 Convention, 
does not provide for a civil action for damages in addition to the 
punishment. However, despite this omission from the 1958 Conven- 
tion, the general principles of international law with respect to state 
responsibility for damage to property of nationals of foreign states 
resulting from actions which are willful or culpably negligent would 
accord to the injured state the right to recover for such damage. 

Article 28 imposes the duty upon a state to see that if its cable 
owners break or damage the cables of another owner (presumably 
either domestic or foreign), the injuring party shall bear the cost 
of the repairs. If this article had been broadened to include every 
person subject to the state's jurisdiction, rather than just cable owners, 
it would have been a much better provision. However, a fair inter- 
pretation of Article 28 as it is worded suggests that if a cable owner 
who damages another owner's cable must pay the cost of repairs, the 
same would apply to ship owners who damage a cable. 

The main thrust of the first argument for contending that a state 
whose cables have been damaged may, under unusual circumstances 
such as those of the present case, board and inspect the vessel rea- 
sonably thought to be guilty of willful or culpably negligent action in 
breaking the cables is that each party to the 1958 Convention assumes 
certain duties to all other parties to take legislative action, the im- 
port of which is to see that its own and other state's cables may be 
laid, operated and maintained free from damage, or with recovery 
for damage if it occurs in a willful or culpably negligent manner. 



175 

The determination of the identity of the possible offender and the 
willfulness or culpability of the action requires the securing of all 
possible evidence both by the injured and the injuring states. For 
the most part this evidence will have to be gathered by the injured 
state since it is the one which will demand of the other state the 
three things which the United States demanded of the Soviet Union 
under the 1884 Convention, namely, (a) punishment of the offending 
party, (b) reservation of the right to make claims for damages, and 
(c) a request that the injuring state take effective measures to prevent 
further damage. 22 

An even more compelling argument in favor of the conclusion that 
the United States would have the right under the 1958 Convention 
on the High Seas (if it were operative) to board and inspect the 
Soviet trawler under the facts of the case is that this Convention is 
a codification of international law relating to the high seas and that 
the provisions are "generally declaratory of established principles 
of international law." 23 Thus, in line with our previous arguments, 
since the 1884 Convention has developed into widely-practiced, cus- 
tomary international law relative to the right to lay, operate and 
maintain submarine cables, the rights and duties of all states as 
enunciated in the 1884 Convention and established through more than 
70 years of state practice are codified by the 1958 Convention. 

It is vital, of course, that ships of all states sailing the high seas 
be kept free from indiscriminate boarding and inspection by a foreign 
vessel. Some feel so strongly on this point that they have contended 
that the right to board and inspect is non-existent in times of peace 
with the exception of cases of suspected piracy. 24 However, the 
better view is that under unusual circumstances, such as those of the 
present case, an injured state may board and inspect a foreign vessel, 
other than a foreign warship, in order to gather evidence necessary 
for the fulfillment of its obligations and as a requisite to the full 
achievement of its rights under treaties and customary international 
law. 25 



22 See text, supra, p. 166. 

23 Preamble to Convention on the High Seas. See Appendix B. 

24 II Moore, Digest of International Law 892 (19(B) ; I Fauchille, Traite de 
Droit International 66 (1922). 

25 Article 22 of the Convention on the High Seas makes provision for a warship 
of one state to board a foreign merchant ship on the high seas under "powers 
conferred by treaty," such as those implied in Article X of the 1884 Convention. 
However, the rest of that article imposes strict limitations against boarding 
foreign merchant vessels on the high seas. Article 22 (1) provides: 

1. Except where acts of interference derive from powers conferred by treaty, 
a warship which encounters a foreign merchant ship on the high seas is not 



176 

One final question: Does the 1884 Convention, customary interna- 
tional law, or the 1958 Geneva Convention on the High Seas give the 
right to an injured state to board a foreign war vessel, a foreign mer- 
chant or fishing vessel which is publicly owned or operated, or only a 
foreign merchant or fishing vessel which is privately owned ? 

It is clear that nothing in the 1884 Convention or in customary in- 
ternational law gives one state the right to board and inspect a foreign 
war vessel. Moreover, under Article 8 of the Convention on the High 
Seas, which, as previously indicated, codifies established principles of 
international law, "warships on the high seas have complete immunity 
from the jurisdiction of any State other than the flag State." 26 
Therefore, if the Soviet trawler had been a warship as defined in the 
Convention 27 it could not have been boarded and inspected by the 
United States under any circumstances. 

The real question, therefore, is whether the right to board and in- 
spect a foreign vessel under circumstances such as those in this case is 
limited to privately owned vessels or may be invoked even though the 
vessel is owned or operated by the state. 

The law as to the status of state-owned or operated vessels used for 
commercial purposes is not settled, although the trend in recent years 
in many states is to consider such vessels on the same basis as privately 
owned vessels. 28 

Despite considerable opposition by the Soviet bloc at the 1958 Con- 
ference, the Convention on the High Seas as finally drafted contains a 
provision which puts state-owned or operated vessels used for commer- 
cial purposes on the same basis as privately owned vessels. Article 
9 provides, 

"Ships owned or operated by a State and used only on gov- 
ernment non-commercial service shall, on the high seas, have 
complete immunity from the jurisdiction of any State other 
than the flag State." 29 

The above provision implies that if the state-owned or operated 
vessel is used for commercial purposes (i.e., transportation, fishing, 

justified in boarding her unless there is reasonable ground for suspecting : 

( a ) That the ship is engaged in piracy ; or 

(b ) That the ship is engaged in the slave trade ; or 

(c) That, though flying a foreign flag or refusing the show its flag, the 
ship is, in reality, of the same nationality as the warship. (See Appendix B 
for full text of the Convention on the High Seas.) 

2(3 Appendix B, Art. 8(1). 

27 Ibid., at Art. 8(2). 

28 Bishop, op. cit., footnote 14 (at 421). In recent treaties the United States 
has included a provision which puts state-owned vessels in the same class with 
privately-owned vessels. 

29 U.N. Doc. A/CONF. 13/L. 53 and corr. 1 (1958) . 



177 

etc.) it is not immune on the high seas from the jurisdiction of states 
other than the flag state. Therefore, absent any limitation on this 
provision, the United States could have boarded and inspected the So- 
viet trawler under Article 9 in view of the special circumstances of 
the case. 

However, Article 9 is not free from a limitation in so far as the 
Soviet Union is concerned because, in signing the Convention on the 
High Seas, she filed a reservation to this particular article, as follows : 

"The Government of the Union of Soviet Socialist Repub- 
lics considers that the principle of international law accord- 
ing to which a ship on the high seas is not subject to any juris- 
diction except that of the flag State applies without restric- 
tion to all government ships." 

Because of the fact that a state is generally not bound by any pro- 
vision of a treaty or convention to which she files a reservation, the 
Soviet Union would appear to have some basis for protesting the 
boarding and inspection of her trawler by the United States under the 
1958 Convention on the High Seas, assuming, of course, that the Con- 
vention were operative as a result of ratification by the requisite 22 
states, including the United States and the U.S.S.R. 

One possible argument for holding the boarding and inspection of 
the Soviet trawler by the United States valid under the provisions of 
the 1958 Convention on the High Seas despite the Soviet reservation to 
Article 9 would be that the general practice of states in treating pub- 
licly owned or operated vessels on the same basis as privately owned 
vessels used for commercial purposes is sufficiently widespread to have 
established customary international law binding upon all states of the 
world community. Under this line of argument Article 9 of the Con- 
vention would be considered as a codification of existing international 
law which would be binding upon all states regardless of any reser- 
vations to this article. 30 

It may be concluded with respect to the entire case that the United 
States had a right to board and inspect the Soviet trawler even though 
she may have been a publicly owned or operated vessel. 

The right of the United States existed primarily because both 
states are parties to the Convention for the Protection of Submarine 
Cables (1884). In addition, the conclusion appears justified that the 
right existed also because customary international law relative to sub- 



30 This argument is worthy of serious consideration because the Convention on 
the High Seas does not contain a provision for a state to make reservations to 
any of the articles or sections thereof whereas the Convention on the Continen- 
tal Shelf, adopted at the same time, does contain such a provision. Art. 12 of 
Convention on the Continental Shelf. Appendix D. 



178 

marine cables lias developed from the 1884 Convention and from 
general state practice so that the United States could have boarded the 
trawler under the special circumstances of the case even though the 
United States and/or the Soviet Union had not been parties to the 
1884 Convention. 

Finally, there appears to be a strong basis for concluding that the 
right would exist under the 1958 Geneva Convention on the High 
Seas (assuming the Convention had been operative at the time of the 
incident, with both the United States and the Soviet Union as con- 
tracting parties) because the 1958 Convention constitutes a codifica- 
tion of international law which has become well established relative 
to laying, operating and maintaining submarine cables. 

B. PROBLEM 2 ; Exclusion of a Foreign Ship From Nuclear Test- 
ing Area 

FACTS: Members of the Peace Association in State A raised 
money to build and operate a small ship named The Peace Mission 
for the widely-announced purpose of navigating into State A's 
nuclear testing area on the high seas in a dramatic attempt to rally 
public opinion behind an effort on the part of scientists, religious 
leaders, and others to persuade State A to halt the tests. 

The Peace Mission, registered under the flag of State A, was 
warned not to proceed with plans to navigate into the test area during 
a designated 30- day period when the next tests were to be conducted 
by State A. All states of the world had been informed of the loca- 
tion of the test area and the dates of the next tests by Notices to 
Mariners. The notices contained the following provision, among 
others: "All surface vessels of all states are prohibited from enter- 
ing the test area during the test period." 

Within the test area were several islands all of which were under 
the sovereignty of State A. The tests could not be conducted on 
State A's territory because of the density of its population. 

Despite the warning, backers of The Peace Mission were adamant, 
announcing publicly that they intended to navigate into the test area. 
Shortly thereafter the Atomic Energy Commission of State A issued 
a regulation making it a crime for vessels or civilians of State A to 
enter the test area during the test period. Nothing was said in the 
regulation regarding foreign vessels. 

Although officials of The Peace Association thought that the 
administrative regulation of the Atomic Energy Commission was 
unconstitutional, they decided to transfer the registration of The 
Peace Mission to State X, a state which had enjoyed a great increase 



179 

in ship registrations for several years because of "favorable" labor 
laws and low registration fees. 

Flying the flag of State X, with officers and crew made up pre- 
dominantly of citizens of State A, but with a few crew members from 
States X and Y, The Peace Mission sailed toward the test area, after 
stopping for refueling at an island under the flag of State A. While 
on the high seas some ditsance from the test area and just a few days 
prior to the start of the tests, The Peace Mission was overtaken by a 
coast guard cutter of State A which had pursued her from the island 
refueling port. The Peace Mission had slipped out of the island port 
without getting clearance to leave, after State A's officials had re- 
fused to grant her permission to depart for the purpose of sailing 
into the test area. 

The Peace Mission was well out to sea before her escape was 
detected. After several hours of pursuit the coast guard cutter of 
State A overtook The Peace Mission and forced her to turn back to 
State A's island port, where she was detained until after completion 
of the nuclear tests and fined for having left the port without proper 
clearance. 

The government of State X protested to the government of State 
A that the action of the cutter was a violation of international law. 

The major international law questions involved in this hypothetical 
problem situation are these : 

1. Whether a state has the right to designate an area of the high 
seas for nuclear tests (or for missile, rocket, or other tests) during a 
limited period of time, and, if so, what responsibilities the testing 
state has to insure a minimum of interference with other users in the 
test area and surrounding areas of the high seas? 

2. Assuming that a state has the right to designate an area of the 
high seas for nuclear, missile, or other tests, whether the testing state 
may merely notify other states that it is a "danger area" from which 
all other users are cautioned to stay away during the test period, or 
whether the testing state may prohibit all other users from entering 
or otherwise using the test area during the test period ? 

3. To what extent may a testing state exercise jurisdiction over a 
foreign vessel on the high seas when the flag of the foreign state is 
essentially a "flag of convenience" without any "genuine link between 
the state and the ship" as required under Article 5 (1) of the 1958 
Geneva Convention on the High Seas ? 31 

Q. 1: Whether a state has the right to designate an area of the 
high seas for nuclear tests (or for missile, rocket, or other tests) dur- 
ing a limited period of time, and, if so, what responsibilities the 

31 See Appendix B for full text of the Convention. 



180 

testing state has to insure a minimum of interference with other users 
in the test area and surrounding areas of the high seas ? 

Although the legal right of a state to designate an area of the high 
seas for nuclear, missile, rocket or other tests is now widely recognized 
as a valid use of the high seas, a number of thoughtful persons oppose 
the continuation of the tests, particularly atomic and thermonuclear 
tests on the ground that they are legally and morally wrong. The 
moral arguments against such tests are (a) that the world cannot 
achieve peace if states continue to develop increasingly devastating 
weapons of destruction which are rapidly approaching the point of 
guaranteed annihilation; (b) that even though such horrible weapons 
are never used, the mere testing has an adverse genetic effect upon the 
human race because of the harmful fallout; and (c) that the sheer 
waste of human and physical resources in the entire armaments race, 
of which nuclear and missile testing is such a costly part, is morally 
indefensible. 

The legal arguments against using any part of the high seas for 
nuclear tests were rather well summarized by Margolis in 1955 32 in 
commenting upon the hydrogen bomb tests conducted by the United 
States in a 400,000 square mile area encompassing a number of islands 
held under a strategic Trusteeship Agreement with the United Na- 
tions. Margolis argued that the establishment of a vast warning area 
cannot be reconciled with "the international law principle of freedom 
of the seas and its attendant corollaries, freedom of navigation (of 
both the sea and the air), and freedom from interference with the 
lawful pursuit of maritime industries (fishing, transport, etc.)." 33 
In addition to arguing that the tests were a violation of freedom of 
the seas, Margolis also claimed that they also violated both the United 
Nations Charter and the Trusteeship Agreement for the former 



32 Margolis, "The Hydrogen Bomb Tests and International Law," 64 Yale Law 
Journal 629 (1955). 

33 Ibid., at 630, 635. Also see Margolis, "The Legality of H-Bomb Tests," The 
Nation 570 (Dec. 31, 1955) in which he invokes both legal and moral arguments, 
saying, "Arguments of expediency couched in terms of defending the free world 
and human dignity become specious when placed against the clear requirements 
of the relevant rules of law and, by implication, of morality . . . the laws of 
humanity suggest and the law of nations requires immediate and permanent 
cessation of the thermonuclear experiments in the vast expanse of the Marshall 
Islands proving grounds." (Ibid., at 572.) Also see the statement of Earl 
Jowitt in the House of Lords : "I am entirely satisfied that the United States, in 
conducting these experiments, have taken every possible step open to them to 
avoid any possible danger. But the fact that the area which may be affected 
is so enormous at once brings this problem : that ships on their lawful occasions 
may be going through these waters, and you have no right under international 
law, I presume, to warn people off." 186 H.L. Deb. 808-09 (5th Ser. 1954) . 



181 

Japanese Mandated Islands and caused an illegal pollution of the 
high seas and the air space. 

On the other hand, the legal arguments for the right of a state to 
conduct the nuclear tests have been effectively marshalled by 
McDougal and Schlei, in answer to the Margolis thesis. 34 

While the claim of a State to use a designated area of the high seas 
for nuclear weapons testing is relatively recent and unprecedented, for 
the obvious reason that science and technology did not create such 
weapons until 1945, this new, emergent use of the high seas is a reason- 
able one. It is reasonable because it is a necessary requisite of self- 
defense. As McDougal has rightly concluded, 

"The claim of the United States is in substance a claim to 
prepare for self-defense. ... It has not been possible to 
establish, under the United Nations or otherwise, either effec- 
tive international control of armaments or commitments and 
procedures of global scope which offer reasonable assurance 
against aggression. . . . The United States has undertaken 
its program of atomic and thermonuclear weapons develop- 
ment to ensure that these free nations are not lacking either 
in the retaliatory power which may deter aggression or in the 
weapons of self-defense if deterrence fails. In this posture 
of world organization and crisis, which puts so high a pre- 
mium on self-defense, with authorization of potentially the 
most drastic interferences with others, it cannot, we suggest, 
be reasonably concluded that it is unreasonable for the United 
States to engage in such temporary and limited interferences 
with navigation and fishing as are involved in the hydrogen 
bomb tests, in preparation for the defense of itself and its 
allies and of all the values of a free world society." 35 
Certainly the objective of defending all the values of a free world 
society is as important as, and indeed includes, the traditional uses 
of the high seas for navigation, fishing, cable laying, etc. Security is 
the keystone in the arch of all free world values and to be secure the 
United States and her allies must continue to test and perfect every 
type of defense weapon even though, it is to be hoped, these weapons 
never have to be used in defense of the Free World. 

The Soviet Government has attempted to distinguish between desig- 
nating an area of the high seas for nuclear weapons testing and rocket 
or missile testing. At the 1958 Geneva Conference the Soviet bloc 



84 McDougal and Schlei, "The Hydrogen Bomb Tests in Perspective: Lawful 
Measures for Security," 64 Yale Law Journal 648 (1955) . 

35 McDougal, "The Hydrogen Bomb Tests and the International Law of the 
Sea," 49 A.J.I.L. 356, 361 (1955) . 



182 

tried desperately but without success to have inserted into the Con- 
vention on the High Seas a new succinctly-worded article: "States 
are bound to refrain from testing nuclear weapons on the high seas." 36 
Yet, despite her vociferous objections to nuclear test areas on the 
high seas, the Soviet Government felt no hesitancy recently (January 
7, 1960) in designating a fairly large area of the Pacific about 1,000 
miles east of the Marshall Islands for some rocket tests, with the fol- 
lowing announcement : 

"On the basis of the progress made by the Soviet Union in 
the exploration of cosmic space with the help of ballistic 
rockets, and in conformity with their research program, 
Soviet scientists and designers are now working to develop 
a more powerful rocket to launch heavy earth satellites and 
undertake space flights to planets of the solar system. 

"With a view to perfecting this rocket with a high accuracy 
of flight, its launchings without the last stage will be made 
within the coming months of 1960 into the central part of the 
Pacific Ocean, removed from places of intensive shipping, 
airlines and fisheries. 

"The penultimate stage of the rocket is expected to fall 
within the area with the following coordinates : 

"Latitude : 9.6 degrees north, 10.22 degrees north, 6.16 de- 
grees north, 5.3 degrees north. 

"Longitude : 170.47 degrees west, 168.22 degrees west, 166.16 
degrees west, 168.40 degrees west. 

"Special ships of the Soviet fleet will be dispatched to this 
area to carry out the necessary measurements. 

"This first launchings of rockets will be undertaken some- 
where between Jan. 15 and Feb. 15, 1960. 

"To insure the safety of navigation and air traffic during 
the launching of rockets into the Central Pacific, Tass is 
authorized to announce that the Government of the Soviet 
Union asks the governments of the nations whose ships or 
aircraft may find themselves during this period in the vicin- 
ity of the area where the rockets might fall to see that the 
authorities concerned instruct the ship masters and aircraft 



38 4 Official Records (A/CONF. 13/40, 124 (1958) ). The Soviet bloc was also 
unsuccessful in getting the insertion of a provision banning naval or air ranges, 
as follows: "No naval or air ranges or other combat training areas limiting 
freedom of navigation may be designated on the high seas near foreign coasts 
or on international sea routes." (Ibid.) It is rather obvious that the main 
purpose of the Soviet bloc, with adequate land mass area in which to test nuclear 
weapons and missiles, was to cripple or eliminate similar testing by the Free 
World states who must of necessity use the high seas. 



183 

captains to refrain from entering the aquatorium [water] 
area and airspace of the Pacific designated by the above men- 
tioned coordinates." 37 

Basically there is no distinction between designating an area of 
the high seas for atomic tests, thermonuclear tests, missile tests, 
rocket tests, or any other similar tests. In all cases the claim of 
right to use an area of the high seas for such purposes con- 
stitutes the equivalent of an exclusive use of the area by the 
testing state for a limited period of time, even though the claimant 
state nevers demands an exclusive use. The reason why the designa- 
tion of the area constitutes an exclusive use by the testing state is 
clear : the danger to navigation, fishing, scientific research, cable lay- 
ing, and other uses of the designated area during the testing period 
is such that all states other than the State conducting the tests will, 
as a rule, stay clear of the area. 

It may be concluded that states have the right to designate limited 
areas of the high seas for the testing of atomic and thermonuclear 
weapons, missiles, rockets, etc., provided the testing program is rea- 
sonable. Whether it is reasonable depends upon a number of factors, 
among which are: 

(1) There must be an actual, verifiable need to use the high seas 
as the test area. If the State has adequate land mass areas of its 
own for conducting the tests, or can enter into agreements with 
other states to use their land mass areas, the high seas which con- 
stitute a common resource of all states shall not be used. 

(2) Adequate advance notice must be given to all states by the test- 
ing state as to the type of tests to be conducted, the period of time 
for the tests, and an accurate designation of the test area. 

(3) The area selected must be in relatively isolated parts of the 
high seas little used for navigation, fishing, and other uses. 

(4) The size of the testing area must be kept to the absolute mini- 
mum consistent with the safety of other concurrent users of the 
general area of the high seas. 

(5) The period during which the tests are to be conducted must 
be kept as short as possible in order that interference with other 
users of the area will be minimized. 

(6) Every precaution must be taken to insure that any tests (i.e., 
atomic and thermonuclear) which may have lingering after effects 
upon the conclusion thereof should not result in substantial and con- 
tinued deprivation of other uses in the test area or in surrounding 
areas. 



New York Times, Jan. 8, 1960, p. 2, col. 4 & 5. 



184 

(7) At present it appears that the testing state will be responsible 
for the payment of damages for any injury to persons or property of 
foreign states outside of the designated test area. The liability upon 
the testing state shall be absolute because of the hazardous nature of 
the testing activity; a showing of willful or negligent injury shall be 
unnecessary. 

Notwithstanding the conclusion that states have the right to desig- 
nate limited areas of the high seas for the testing of weapons and 
scientific devices whenever the absence of available land mass ter- 
ritory necessitates the use of such areas of the high seas, it should 
be noted that the 1958 Geneva Conference passed a resolution which 
recognized "that there is a serious and genuine apprehension on the 
part of many States that nuclear explosions constitute an infringe- 
ment of the freedom of the seas," 38 and referred the matter to the 
General Assembly of the United Nations for appropriate action. 
Proposed by India, the resolution was approved in the Second Com- 
mittee by a vote of 51 to one, with 14 abstentions, 39 and by the plenary 
meetings by a vote of 58 to none, with 13 abstentions. 40 

Members of the Soviet bloc were the principal abstainers. The rea- 
son given by Tunkin of the U.S.S.R. was that his delegation believed 
that the Conference should deal with the question of nuclear tests and 
should adopt a positive rule to prohibit such tests in that they con- 
stituted a violation of the principle of freedom of the high seas. 41 Of 
course, Tunkin could not know in March of 1958 that in January 
of 1960 his government would take the opposite view in designating 
a large area of the high seas for rocket tests thereby effectively 
eliminating the free use of those high seas by other states during a 
specified period. 

In voting for the Indian resolution to refer the matter of nuclear 
testing to the General Assembly, and against the Soviet bloc proposal 
to add a new article which would have prohibited entirely the test- 
ing of nuclear weapons on the high seas, Dean, chairman of the 
United States delegation, pointed out that his government was not 
opposed to the prohibition of nuclear tests provided it was accom- 
panied by effective international control. However, he reminded the 
tenth plenary meeting that unfortunately, owing to the attitude of 
the Soviet Union Government, no agreement had so far been possible 



38 U.N. Doc. A/CONF. 13/L.56 (1958). For the full text of this resolution 
entitled "Nuclear Tests on the High Seas," see Appendix F(l). 

39 4 Official Records 52 (1958) . 

40 2 Official Records 24 (1958) . 
41 4 Official Records 53 (1958) . 



185 

and he expressed regret that the Soviet Union had boycotted the Dis- 
armament Commission of the United Nations. 42 

At first glance it appears that the expression in the 1958 Geneva 
Eesolution of "a serious and genuine apprehension on the part of 
many States that nuclear explosions constitute an infringement of 
the freedom of the seas," negates the conclusion we reached above that 
states do have the right to designate areas of the high seas for various 
tests, provided land mass territory is not available. However the 
resolution does not negate our conclusion. As the United Kingdom 
delegate pointed out in the Second Committee, the Indian-sponsored 
resolution to the effect that apprehension about nuclear tests was a 
fact, did not indicate how many states had such apprehensions, or 
whether they were justified. 43 

Moreover, as Sen of India made abundantly clear in the Second 
Committee, his government was in favor of a complete cessation of 
all nuclear explosions, whether conducted on land or on the high 
seas, because such tests were a crime against humanity and nuclear 
energy should not be used for destruction. Finally, it is clear that 
the main purpose of the Indian-sponsored resolution was not to con- 
demn nuclear testing on the high seas apart from nuclear testing on 
land, nor to place a prohibition on the continuation of such tests, as 
the Soviet bloc proposal would have done had it passed but rather 
to refer the matter to the General Assembly as the best possible way 
to resolve the entire problem of disarmament, of which nuclear testing 
on the high seas is but a part. 

Therefore, it may be concluded that the record of the 1958 Geneva 
Conference affirms rather than denies the right of states to continue 
designating areas of the high seas for nuclear and other tests (a) 
provided the tests are reasonable in terms of the requirements set 
forth above and (b) until such time as the United Nations can 
devise satisfactory controls and inspection systems in connection with 
total disarmament in the world community to make unnecessary the 
continuation of large-scale weapons testing on the high seas by the 
United States and her allies in order to insure the defense of all 
the values of a free world society. 

One final point should be made. While it may be true, as someone 
once remarked, that petty consistency is the hallmark of little minds, 
it would appear to be unjustifiably inconsistent to contend, as the 
Soviet government has done, that the designation by the United States 
of an area of the high seas for nuclear weapons testing is an illegal 
violation of the freedom of the high seas, whereas it is valid for the 



42 2 Official Records 22-23 (1958) . 

43 4 Official Records 52 (1958) . 

607631,— 61 13 



186 

U.S.S.E. to claim the right not only to establish a rocket test area 
(see above), but also the right to conduct naval maneuvers and con- 
ventional weapons testing in a designated area of the Arctic and 
warn vessels not to use the area during a specified period. 44 

It is submitted that a state may legally designate a large warning 
area of the high seas for nuclear missile, or rocket tests (assuming 
always the non-availability of land mass for such tests), just as it 
may establish smaller warning areas for conducting naval maneuvers 
and weapons testing on a relatively small scale. The ultimate test in 
every case is the reasonableness of the action as measured by the tests 
indicated above. 

Therefore, in the problem situation outlined, it may be concluded 
that State A had the right to establish the nuclear testing area on 
the high seas. 

Q. 2. Assuming that a state has the right to designate an area of 
the high seas for nuclear, missile, or other tests, the next question is 
whether the testing state may merely notify other states that it is 
a "danger area" from which all other users are cautioned to stay away 
during the test period, or whether the testing state may prohibit all 
other users from entering or otherwise using the test area during the 
test period? The question may be asked in two parts: (1) May a 
state exclude vessels of its own state ? (2) May a state exclude vessels 
flying the flag of a foreign state ? 

The first part of the over-all question posed above is a matter of 
domestic rather than international law, and hence will not be dis- 
cussed here beyond saying that the United States has prevented ships 
registered under her flag from entering her nuclear test areas. 45 It 
appears to us that the action of the United States was justified, other- 
wise it would knowingly have permitted the suicide of some well- 
meaning citizens who, however noble their intentions to dramatize 
the inhumanity of nuclear warfare are, fail to realize the disastrous 
consequences of an unprepared Free World. 46 One purpose of a 
civilized state is to protect its citizens against their own folly, whether 
it be jumping off of high buildings, swallowing poison, or sailing into 
nuclear test areas. 

With respect to the second part of the question (i.e., the right of a 
testing state to exclude foreign vessels), it seems clear that all any 
state may do under present international law is to designate the test 
area as a "danger zone" and notify all possible users thereof to stay 



44 Neiv York Times, Sept. 3, 1957, p. 1, col. 6. 

^Bigelow v. United States, 267 Fed. 2d 398 (1959), Certiorari denied, 361 
U.S. 852, 4 Law Ed. 2d 91, 80 S. Ct. 113. 

49 Bigelow, The Voyage of the Golden Rule (1959); Reynolds, "Forbidden 
Voyage," 187 The Nation 358 (Nov. 15, 1958). 



187 

away during the test period. Nothing in international law or in the 
provisions of any of the four Geneva Conventions of 1958 confers 
upon a state the right to exclude foreign vessels from using an area 
of the high seas which has been designated for nuclear, missile, rocket 
or other similar tests, or even for naval maneuvers or conventional 
weapons testing. 

This conclusion is not at variance with the conclusion reached in 
Chapter II. There it was held that the coastal state has a right under 
the Convention on the Continental Shelf to establish safety zones 
around continental shelf installations, which safety zones would then 
encompass what we designated as "protected high seas" from which 
the coastal state under certain circumstances would have not only the 
right but also the duty to exclude foreign vessels. 

But the "protected high seas" within the safety zone are different 
from the high seas of a designated test area. As indicated in Chapter 
II, the "protected high seas" of the continnetal shelf safety zone 
normally may be used by all states for navigation, fishing, scientific 
investigation, etc., subject only to the condition that such use must 
not unreasonably endanger or impede the exploitation of the con- 
tinental shelf resources. When the exploitation is unreasonable, en- 
dangered or impeded, as in the problem situation posed in Chapter II, 
the coastal state may exclude the foreign vessels until such time as 
the danger or impediment is removed. 

However, the "protected high seas" of the continental shelf safety 
zone differ in several important respects from an area of the high 
seas designated for nuclear or other tests, differences which make it 
unreasonable to conclude that a testing state may prohibit foreign 
vessels from entering the test area. 

First, by formulating the Convention on the Continental Shelf, 
the world community of states has sanctioned the creation of a safety 
zone by a coastal state around continental shelf installations and in 
doing so has given a special character to the high seas within the 
zone. The world community has also conferred certain express rights 
(and imposed certain duties) upon the coastal state with respect to 
controlling those "protected high seas" in connection with the exploi- 
tation of the continental shelf resources. The rights conferred in- 
clude the right to prohibit vessels from using the "protected high 
seas" of the safety zone under certain extreme conditions. 

By contrast, in designating a nuclear or other test area in the high 
seas, no state has been so bold as to claim the right to prohibit foreign 
vessels or aircraft from using such areas. 47 Nor does an international 

47 MacChesney, U.S. Naval War College International Law Situation and 
Documents— 1956 611-629 (1957). It is true that the United States did desig- 
nate some closed areas to all vessels and aircraft as of Jan. 7, 1956, but this 



188 

convention exist which even suggests that a state has the right to ex- 
clude foreign vessels from any area of the high seas (other than from 
the continental shelf safety zone) . On the contrary, the Convention 
on the High Seas contains the express provision that "the high seas 
being open to all nations, no State may validly purport to subject any 
part of them to its sovereignty." 48 

Second, the area of the "protected high seas" of the continental 
shelf safety zone under present contemplation is a relatievly small 
area of the high seas as compared with the vast areas required for 
nuclear and other tests. The Convention on the Continental Shelf 
expressly limits the safety zone to a "distance of 500 metres around 
the installations and other devices which have been erected," with the 
specific requirement that "ships of all nationalities must respect these 
safety zones." 49 

By contrast, the areas of the high seas designated by testing states 
for nuclear or other tests may be, and usually are, large. The United 
States test area for the hydrogen bomb tests covered 400,000 square 
miles. The area recently designated by the Soviet Government for 
rocket tests, although smaller than the United States thermonuclear 
test area, was vast as compared with the contemplated safety zone 
areas encompassing "protected high seas" around continental shelf 
installations. 

Both the limitation of the safety zone to a small area, and partic- 
ularly the right which is accorded the coastal state under the Con- 
vention on the Continental Shelf to demand the respect of its safety 
zone by foreign vessels give rise to the right to exclude such vessels 
from the safety zone if necessary. Stated another way, the right to 

included the land areas of certain atolls and the three-mile territorial sea 
thereof. (Ibid., at 627.) However, in areas of the high seas the United States 
has only established "danger areas." Similarly, the Soviet Government in its 
recent designation of the area of the high seas for her rocket tests made no 
attempt to exclude other users from the area, but only warned vessels and 
aircraft. (For the text of the Soviet announcement see, supra, p. 182.) 

48 U.N. Doc. A/CONF. 13/L.53 and corr. 1, Art. 2 (1958). Admittedly this 
statement in Article 2 of the Convention on the High Seas is stronger than is 
justified and less accurate than it should be, in view of (a) state practice, (b) 
other provisions of the four Geneva Conventions of 1958. For example, the 
Convention on the Continental Shelf gives the coastal state the right to build 
and maintain installations on the contintenal shelf which installations do 
constitute an exercise of sovereignty over a part of the high seas (i.e., the high 
seas occupied by the installations). Also, as pointed out previously, while a 
state may not purport to subject the high seas designated as a test area to its 
sovereignty, the effect is equivalent to an exclusive use (i.e., sovereignty) for 
a limited period of time because in most cases other users will stay away because 
of the danger. 

49 Convention on the Continental Shelf, Art. 5(3). See Appendix D. 



189 

exclude foreign vessels from the "protected high seas" of a small 
safety zone is justified not only because of the provisions of the Con- 
vention but also because of the fact that such exclusion in a few 
unusual cases would not greatly burden the excluded state. 

On the other hand, in view of (a) the long history of the struggle 
for more than three centuries to protect the freedom of the high seas, 
and (b) the provision of the Convention on the High Seas which 
denies the right of a state to subject any part of them to its sover- 
eignty 50 (unless as expressly provided in any of the Conven- 
tions — e.g., the continental shelf safety zones) , it would be 
unreasonable to conclude that a state has the right to exclude foreign 
vessels from any area of the high seas without world community 
sanction, particularly from so large an area of the high seas as the 
test areas. 

Third, one notes a decided difference in the possible need for a 
coastal state to exclude foreign vessels from the "protected high seas" 
of the safety zone around the continental shelf installations, as con- 
trasted with the lack of any such possible need in a designated test 
area. Presently most of the continental shelf installations are per- 
manent or semi-permanent. This being the case they cannot be moved 
readily to accommodate other users (i.e., those who wish to navigate, 
fish, conduct scientific research, lay cables, etc.). Hence, the coastal 
state must have the ultimate right to exclude other users from the 
safety zone whenever necessary in order to protect these installations 
and devices used in the exploitation of the natural resources. 

By contrast, a state designating an area of the high seas for con- 
ducting nuclear or other tests does not need the right to exclude 
foreign vessels from the designated area in order to perform the 
tests. To be sure, if foreign vessels are not excluded from a test area 
they may suffer damage, but it is enough to warn them of the danger 
and then leave it to them to decide whether they wish to heed the 
warning or assume the risk of damage by entering the test area. 

Therefore, since the need to exclude foreign vessels from the "pro- 
tected high seas" of a safety zone may exist, and since there is no 
need to exclude such vessels from a designated test area in the high 
seas, the two types of high seas differ significantly, justifying the 
right of exclusion in certain unusual instances in the case of the safety 
zone, but not justifying it in the case of the designated test area. 

Finally, the "protected high seas" of the safety zone differs mark- 
edly from the designated test area of the high seas in that in the 
former all states have a normal expectation of continuing use of the 
high seas around the continental shelf installations for navigation, 



See Appendix B. 



190 

fishing, and other uses while the coastal state is exploiting the conti- 
nental shelf resources, whereas in the case of the designated test area 
there is no normal expectation of use during the test period because 
of the nature of the testing activity and, in fact, little use of the test 
area at any time because of its isolated location. While continental 
shelf installations may not be located in such a way as to interfere 
with the use of "recognized sea lanes essential to international naviga- 
tion," 51 they may be located near such sea lanes and also in areas of 
the high seas which may be excellent fishing grounds where fishing 
would be conducted on a large scale by coastal and overseas fleets 
concurrently with the exploitation of oil or other resources from the 
continental shelf by the coastal state. 

On the other hand, one of the tests of the reasonableness of the desig- 
nation of a test area by a state is that the area selected must be in an 
isolated section of the high seas little used for navigation, fishing and 
other purposes. The hasty conclusion which might be drawn relative 
to this difference in expectation of use of the "protected high seas" 
of the continental shelf safety zone as contrasted with the use of the 
isolated test area of the high seas is that the former (i.e., safety zone) 
should not permit of exclusion of foreign vessels because of the 
possible serious burden to other users, whereas the latter test area could 
permit of exclusion without serious impairment of other uses because 
of little expectation of use of the isolated test areas. Yet, a more 
reflective consideration of the total problem, viewed from the per- 
spective of the arguments marshalled above, particularly those based 
upon the provision of the 1958 Convention on the High Seas which 
codifies "the rules of international law relating to the high seas" 52 
in denying the right of any State to exercise sovereignty over any part 
of the high seas (except, of course, where other conventions may 
accord special rights such as in the case of the continental shelf safety 
zones) , leads inexorably to the conclusion that testing states may not 
prohibit other states from using the vast test areas. 

To permit the exclusion of foreign vessels from test areas could 
conceivably lead to spurious claims by states to large areas of the 
high seas, ostensibly for conducting nuclear, missile, rocket, or other 
tests, when in fact the claims would be for ulterior purposes inimical 
to the best interests of the total values of the free world society. 
Therefore, the basic, overriding principle of freedom of the high 
seas must prevail not only in all conventions which are written, 
but in the decisions which are made in various foreign offices and in 
the World Court and other international tribunals. The right of 

51 Art. 5(6). See Appendix D. 

52 Preamble to Convention on the High Seas. See Appendix B. 



191 

one state to exclude another from any area of the high seas, even 
for a limited time, must not be permitted, unless expressly authorized 
by an international convention (e.g., the Convention on the Continen- 
tal Shelf) and only then in extreme circumstances such as those 
formulated in the problem situation in Chapter II where in imminent 
danger to the continental shelf installations justified the neutral 
coastal state in excluding from the "protected high seas" of the safety 
zone the warships of belligerents. 

Therefore, it follows that State A could not exclude a foreign 
vessel from its nuclear testing area, although presumably it would not 
be liable for any damage suffered by the vessel or its personnel inside 
the test area on the theory that the foreign vessel, having been 
warned of the danger, assumed the risks of navigating into the 
area. 

But here there is a real question as to whether the vessel, The 
Peace Mission, is in fact a foreign vessel. It is manned by officers 
and crew who were predominantly citizens of State A, and its flag 
was changed to State X largely for convenience in order to avoid 
the possible application of the administrative regulation of the Atomic 
Energy Commission which made entrance into a test area for vessels 
of State A a punishable offense. This leads to the next question. 

Q. 3. To what extent may a testing state exercise jurisdiction over 
a foreign vessel on the high seas when the flag of the vessel is essen- 
tially a "flag of convenience" with some doubt as to the "genuine link 
between the state and the ship" as required under Article 5(1) of the 
1958 Geneva Convention on the High Seas? 

Article 5(1) provides as follows : 

"Each State shall fix the conditions for the grant of its na- 
tionality to ships, for the registration of ships in its territory, 
and for the right to fly its flag. Ships have the nationality 
of the State whose flag they are entitled to fly. There must 
exist a genuine link between the State and the ship; in par- 
ticular, the State must effectively exercise its jurisdiction and 
control in administrative, technical and social matters over 
ships flying its flag." 53 (emphasis added) 

The International Law Commission had the same provision in its 
final draft articles. 54 Just what constitutes a "genuine link" is no- 
where defined by the Commission, nor did the 1958 Conference decide 
upon any tests for determining the matter. In its commentaries on the 
article, the Commission admitted that the terminology was vague and 
lacked precision, saying, 

53 U.N. Doc. A/CONF. 13/L. 53 and corr. 1 (1958) . 

54 U.N. Doc. A/3159, 24, Art. 29 (1956) . 



192 

"The Commission does not consider it possible to state in any 
greater detail what form this link should take. This lack of 
precision made some members of the Commission question the 
advisability of inserting such a stipulation. But the ma- 
jority of the Commission preferred a vague criterion to no 
criterion at all. While leaving States a wide latitude in this 
respect, the Commission wished to make it clear that the 
grant of its flag to a ship cannot be a mere administrative for- 
mality, with no accompanying guarantee that the ship pos- 
sesses a real link with its new State." 55 

At the 1958 Conference the United States and several other states, 
particularly Liberia and Panama, currently ranking third and sixth, 
respectively, in merchant fleet tonnage in the world, 56 opposed the 
"genuine link" provision. The Liberian delegate argued that the 
provision would lead to confusion, 57 and the Panamanian delegate not 
only criticized the lack of precision of the language but also contended 
that its use would encourage States to interfere in the internal affairs 
of others. 58 

On the other hand, the United Kingdom delegate said that the 
article was acceptable as a statement of principle and that no attempt 
should be made to define the "genuine link" in greater detail and that, 
in any event, the job of definition was a specialized task for another 
body with more time and greater knowledge of the issues. 59 Other 
states concurred and the article was adopted. 

Under the facts of our hypothetical problem it could be argued that 
there is no "genuine link between the state and the ship." The rea- 
son The Peace Association changed the registration was stipulated 
to be for the purpose of avoiding the application of the regulation 
of the Atomic Energy Commission of State A. Moreover, the ma- 
jority of the officers and crew of the vessel are citizens of State A. 
Finally, The Peace Association which raised the money to build the 
vessel for the specific purpose of sailing into the nuclear test area 
is an association of State A. 

Under the above analysis the facts seem to indicate a lack of any 
"genuine link" (whatever its exact tests) between the ship and State 
X, which brings into play another article of the Convention on the 
High Seas under which the coast guard vessel of State A would 
have the right to exercise jurisdiction over The Peace Mission even 



65 Ibid., at 25. 

M Merchant Fleets of the World (as of Dec. 31, 1958) U.S. Department of Com- 
merce, Maritime Administration. 

67 4 Official Records (A/CONF. 13/40, 63 (1958) ). 

68 Ibid., at 62. 

69 Ibid. 



193 

though she was flying the flag of State X. Article 22(1) of that 
Convention provides in part, 

"1. Except where acts of interference derive from powers 
conferred by treaty, a warship which encounters a foreign 
merchant ship on the high seas is not justified in boarding 
her unless there is reasonable ground for suspecting: . . . 
(c) That, though flying a foreign flag or refusing to show 
its flag, the ship is, in reality, of the same nationality as the 
warship." 60 

On the other hand, it could be argued that ownership of the vessel 
and nationality of the crew are not elements of a "genuine link," 
since proposals to take these into account were rejected by the Con- 
ference. The only requisite of Article 5(1) cited above is that "the 
state must effectively exercise its jurisdiction and control in admin- 
istrative, technical and social matters over ships flying its flag." 61 

Since there is no evidence that State X did not exercise jurisdiction 
and control over the vessel, The Peace Mission, the more valid con- 
clusion is that the testing state, State A, had no right to exercise 
jurisdiction over the vessel on the high seas. 



60 Appendix B, p. 203. 

"U.N. Doc. A/CONF. 13/L. 53 and corr. 1 (1958). 



APPENDIX A 

CONVENTION ON THE TERRITORIAL SEA AND THE 

CONTIGUOUS ZONE 3 

The States Parties to this Convention Have Agreed as follows: 

PART I: TERRITORIAL SEA 

Section I. General 

Article 1 

1. The sovereignty of a State extends, beyond its land territory 
and its internal waters, to a belt of sea adjacent to its coast, described 
as the territorial sea. 

2. This sovereignty is exercised subject to the provisions of these 
articles and to other rules of international law. 

Article 2 

The sovereignty of a coastal State extends to the air space over 
the territorial sea as well as to its bed and subsoil. 

Section II. Limits of the Territorial Sea 

Article 3 

Except where otherwise provided in these articles, the normal 
baseline for measuring the breadth of the territorial sea is the low- 
water line along the coast as marked on large-scale charts officially 
recognized by the coastal State. 

Article 4 

1. In localities where the coast line is deeply indented and cut 
into, or if there is a fringe of islands along the coast in its immediate 
vicinity, the method of straight baselines joining appropriate points 



3 Adopted Apr. 27 (U.N. doc. A/CONF. 13/L. 52). 
194 



195 

may be employed in drawing the baseline from which the breadth 
of the territorial sea is measured. 

2. The drawing of such baselines must not depart to any appreci- 
able extent from the general direction of the coast, and the sea areas 
lying within the lines must be sufficiently closely linked to the land 
domain to be subject to the regime of internal waters. 

3. Baselines shall not be drawn to and from low-tide elevations un- 
less lighthouses or similar installations which are permanently above 
sea level have been built on them. 

4. Where the method of straight baselines is applicable under the 
provisions of paragraph 1, account may be taken in determining 
particular baselines, of economic interests peculiar to the region con- 
cerned, the reality and the importance of which are clearly evidenced 
by a long usage. 

5. The system of straight baselines may not be applied by a State 
in such a manner as to cut off from the high seas the territorial sea 
of another State. 

6. The coastal State must clearly indicate straight baselines on 
charts, to which due publicity must be given. 

Article 5 

1. Waters on the landward side of the baseline of the territorial 
sea form part of the internal waters of the State. 

2. Where the establishment of a straight baseline in accordance 
with article 4 has the effect of enclosing as internal waters areas 
which previously had been considered as part of the territorial sea 
or of the high seas, a right of innocent passage, as provided in articles 
14 to 23, shall exist in those waters. 

Article 6 

The outer limit of the territorial sea is the line every point of 
which is at a distance from the nearest point of the baseline equal to 
the breadth of the territorial sea. 

Article 7 

1. This article relates only to bays the coasts of which belong to a 
single State. 

2. For the purposes of these articles, a bay is a well-marked in- 
dentation whose penetration is in such proportion to the width of its 
mouth as to contain landlocked waters and constitute more than a 
mere curvature of the coast. An indentation shall not, however, be 
regarded as a bay unless its area is as large as, or larger than, that of 



196 

the semi-circle whose diameter is a line drawn across the mouth of 
that indentation. 

3. For the purpose of measurement, the area of an indentation is 
that lying between the low-water mark around the shore of the in- 
dentation and a line joining the low- water marks of its natural en- 
trance points. Where, because of the presence of islands, an indenta- 
tion has more than one mouth, the semi -circle shall be drawn on a line 
as long as the sum total of the lengths of the lines across the different 
mouths. Islands within an indentation shall be included as if they 
were part of the water area of the indentation. 

4. If the distance between the low-water marks of the natural en- 
trance points of a bay does not exceed twenty-four miles, a closing 
line may be drawn between these two low-water marks, and the waters 
enclosed thereby shall be considered as internal waters. 

5. Where the distance between the low- water marks of the natural 
entrance points of a bay exceeds twenty-four miles, a straight baseline 
of twenty-four miles shall be drawn within the bay in such a manner 
as to enclose the maximum area of water that is possible with a line of 
that length. 

6. The foregoing provisions shall not apply to so-called "historic" 
bays, or in any case where the straight baseline system provided for 
in article 4 is applied. 

Article 8 

For the purpose of delimiting the territorial sea, the outermost per- 
manent harbour works which form an integral part of the harbour 
system shall be regarded as forming part of the coast. 

Article 9 

Roadsteads which are normally used for the loading, unloading and 
anchoring of ships, and which would otherwise be situated wholly or 
partly outside the outer limit of the territorial sea, are included in the 
territorial sea. The coastal State must clearly demarcate such road- 
steads and indicate them on charts together with their boundaries, to 
which due publicity must be given. 

Article 10 

1. An island is a naturally-formed area of land, surrounded by 
water, which is above water at high-tide. 

2. The territorial sea of an island is measured in accordance with 
the provisions of these articles. 



197 

Article 11 

1. A low-tide elevation is a naturally -formed area of land which is 
surrounded by and above water at low-tide but submerged at high 
tide. Where a low-tide elevation is situated wholly or partly at a 
distance not exceeding the breadth of the territorial sea from the 
mainland or an island, the low- water line on that elevation may be 
used as the baseline for measuring the breadth of the territorial sea. 

2. Where a low-tide elevation is wholly situated at a distance ex- 
ceeding the breadth of the territorial sea from the mainland or an 
island, it has no territorial sea of its own. 

Article 12 

1. Where the coasts of two States are opposite or adjacent to each 
other, neither of the two States is entitled, failing agreement betweeen 
them to the contrary, to extend its territorial sea beyond the median 
line every point of which is equidistant from the nearest points on the 
baselines from which the breadth of the territorial seas of each of the 
two States is measured. The provisions of this paragraph shall not 
apply, however, where it is necessary by reason of historic title or 
other special circumstances to delimit the territorial seas of the two 
States in a way which is at variance with this provision. 

2. The line of delimitation between the territorial seas of two 
States lying opposite to each other or adjacent to each other shall be 
marked on large-scale charts officially recognized by the coastal 
States. 

Article 13 

If a river flows directly into the sea, the baseline shall be a straight 
line across the mouth of the river between points on the low-tide line 
of its banks. 

Section HI. Right of Innocent Passage 

Sub-Section A. Rules Applicable to All Ships 

Article 14 

1. Subject to the provisions of these articles, ships of all States, 
whether coastal or not, shall enjoy the right of innocent passage 
through the territorial sea. 

2. Passage means navigation through the territorial sea for the 
purpose either of traversing that sea without entering internal waters, 
or of proceeding to internal waters, or of making for the high seas 
from internal waters. 



198 

3. Passage includes stopping and anchoring, but only in so far 
as the same are incidental to ordinary navigation or are rendered 
necessary by force majeure or by distress. 

4. Passage is innocent so long as it is not prejudicial to the peace, 
good order or security of the coastal State. Such passage shall take 
place in conformity with these articles and with other rules of inter- 
national law. 

5. Passage of foreign fishing vessels shall not be considered innocent 
if they do not observe such laws and regulations as the coastal State 
may make and publish in order to prevent these vessels from fishing 
in the territorial sea. 

6. Submarines are required to navigate on the surface and to show 
their flag. 

Article 15 

1. The coastal State must not hamper innocent passage through the 
territorial sea. 

2. The coastal State is required to give appropriate publicity to any 
dangers to navigation, of which it has knowledge, within its territorial 
sea. 

Article 16 

1. The coastal State may take the necessary steps in its territorial 
sea to prevent passage which is not innocent. 

2. In the case of ships proceeding to internal waters, the coastal 
State shall also have the right to take the necessary steps to prevent 
any breach of the conditions to which admission of those ships to 
those waters is subject. 

3. Subject to the provisions of paragraph 4, the coastal State may, 
without discrimination amongst foreign ships, suspend temporarily 
in specified areas of its territorial sea the innocent passage of foreign 
ships if such suspension is essential for the protection of its security. 
Such suspension shall take effect only after having been duly 
published. 

4. There shall be no suspension of the innocent passage of foreign 
ships through straits which are used for international navigation 
between one part of the high seas and another part of the high seas 
or the territorial sea of a foreign state. 

Article IT 

Foreign ships exercising the right of innocent passage shall comply 
with the laws and regulations enacted by the coastal State in con- 
formity with these articles and other rules of international law and, 
in particular, with such laws and regulations relating to transport and 
navigation. 



199 
Sub-Section B. Rules Applicable to Merchant Ships 

Article 18 

1. No charge may be levied upon foreign ships by reason only of 
their passage through the territorial sea. 

2. Charges may be levied upon a foreign ship passing through the 
territorial sea as payment only for specific services rendered to the 
ship. These charges shall be levied without discrimination. 

Article 19 

1. The criminal jurisdiction of the coastal State should not be 
exercised on board a foreign ship passing through the territorial sea 
to arrest any person or to conduct any investigation in connexion 
with any crime committed on board the ship during its passage, save 
only in the following cases : 

(a) If the consequences of the crime extend to the coastal State; 
or 

(b) If the crime is of a kind to disturb the peace of the country 
or the good order of the territorial sea ; or 

(c) If the assistance of the local authorities has been requested 
by the captain of the ship or by the consul of the country whose flag 
the ship flies; or 

(d) If it is necessary for the suppression of illicit traffic in 
narcotic drugs. 

2. The above provisions do not affect the right of the coastal State 
to take any steps authorized by its laws for the purpose of an arrest 
or investigation on board a foreign ship passing through the ter- 
ritorial sea after leaving internal waters. 

3. In the cases provided for in paragraphs 1 and 2 of this article, 
the coastal State shall, if the captain so requests, advise the consular 
authority of the flag State before taking any steps, and shall facilitate 
contact between such authority and the ship's crew. In cases of 
emergency this notification may be communicated while the measures 
are being taken. 

4. In considering whether or how an arrest should be made, the 
local authorities shall pay due regard to the interests of navigation. 

5. The coastal State may not take any steps on board a foreign ship 
passing through the territorial sea to arrest any person or to conduct 
any investigation in connexion with any crime committed before the 
ship entered the territorial sea, if the ship, proceeding from a foreign 
port, is only passing through the territorial sea without entering 
internal waters. 



200 

Article 20 

1. The coastal State should not stop or divert a foreign ship passing 
through the territorial sea for the purpose of exercising civil jurisdic- 
tion in relation to a person on board the ship. 

2. The coastal State may not levy execution against or arrest the 
ship for the purpose of any civil proceedings, save only in respect of 
obligations or liabilities assumed or incurred by the ship itself in 
the course or for the purpose of its voyage through the waters of the 
coastal State. 

3. The provisions of the previous paragraph are without prejudice 
to the right of the coastal State, in accordance with its laws, to levy 
execution against or to arrest, for the purpose of any civil proceedings, 
a foreign ship lying in the territorial sea, or passing through the 
territorial sea after leaving internal waters. 

Sub-Section C. Rules Applicable to Government Ships Other Than 

Warships 

Article 21 

The rules contained in sub-sections A and B shall also apply to 
government ships operated for commercial purposes. 

Article 22 

1. The rules contained in sub-section A and in article 19 shall apply 
to government ships operated for non-commercial purposes. 

2. With such exceptions as are contained in the provisions referred 
to in the preceding paragraphs, nothing in these articles affects the 
immunities which such ships enjoy under these articles or other rules 
of international law. 

Sub-Section D. Rule Applicable to Warships 

Article 23 

If any warship does not comply with the regulations of the coastal 
State concerning passage through the territorial sea and disregards 
any request for compliance which is made to it, the coastal State 
may require the warship to leave the territorial sea. 

PART II. CONTIGUOUS ZONE 

Article 24 

1. In a zone of the high seas contiguous to its territorial sea, the 
coastal State may exercise the control necessary to : 



201 

(a) Prevent infringement of its customs, fiscal, immigration or 
sanitary regulations within its territory or territorial sea; 

(b) Punish infringement of the above regulations committed 
within its territory or territorial sea. 

2. The contiguous zone may not extend beyond twelve miles from 
the baseline from which the breadth of the territorial sea is measured. 

3. Where the coasts of two States are opposite or adjacent to each 
other, neither of the two States is entitled, failing agreement between 
them to the contrary, to extend its contiguous zone beyond the median 
line every point of which is equidistant from the nearest points on 
the baselines from which the breadth of the territorial seas of the 
two States is measured. 

PART III. FINAL ARTICLES 

Article 25 

The provisions of this Convention shall not affect conventions or 
other international agreements already in force, as between States 
Parties to them. 

Article 26 

This Convention shall, until 31 October 1958, be open for signa- 
ture by all States Members of the United Nations or of any of the 
specialized agencies, and by any other State invited by the General 
Assembly to become a Party to the Convention. 

Article 27 

This Convention is subject to ratification. The instruments of rati- 
fication shall be deposited with the Secretary- General of the United 
Nations. 

Article 28 

This Convention shall be open for accession by any States belong- 
ing to any of the categories mentioned in article 26. The instruments 
of accession shall be deposited with the Secretary-General of the 
United Nations. 

Article 29 

1. This Convention shall come into force on the thirtieth day 
following the date of deposit of the twenty-second instrument of 
ratification or accession with the Secretary-General of the United 
Nations. 



607631—61 14 



202 

2. For each State ratifying or acceding to the Convention after 
the deposit of the twenty -second instrument of ratification or acces- 
sion, the Convention shall enter into force on the thirtieth day after 
deposit by such State of its instrument of ratification or accession. 

Article 30 

1. After the expiration of a period of five years from the date 
on which this Convention shall enter into force, a request for the 
revision of this Convention may be made at any time by any Con- 
tracting Party by means of a notification in writing addressed to 
the Secretary-General. 

2. The General Assembly of the United Nations shall decide upon 
the steps, if any, to be taken in respect of such request. 

Article 31 

The Secretary-General of the United Nations shall inform all States 
Members of the United Nations and the other States referred to in 
article 26 : 

(a) Of signatures to this Convention and of the deposit of 
instruments of ratification or accession, in accordance with articles 
26, 27 and 28. 

(b) Of the date on which this Convention will come into force, 
in accordance with article 29. 

(c) Of requests for revision in accordance with article 30. 

Article 32 

The original of this Convention, of which the Chinese, English, 
French, Russian and Spanish texts are equally authentic, shall be 
deposited with the Secretary-General of the United Nations, who shall 
send certified copies thereof to all States referred to in article 26. 

In witness whereof the undersigned Plenipotentiaries, being duly 
authorized thereto by their respective Governments, have signed this 
Convention. 

Done at Geneva, this twenty-ninth day of April one thousand nine 
hundred and fifty-eight. 



APPENDIX B 
CONVENTION ON THE HIGH SEAS 4 

The States Parties to this Convention 

Desiring to codify the rules of international law relating to the 
high seas, 

Recognizing that the United Nations Conference on the Law of 
the Sea, held at Geneva from 24 February to 27 April 1958, adopted 
the following provisions as generally declaratory of established prin- 
ciples of international law, 

Have agreed as follows: 

Article 1 

The term "high seas" means all parts of the sea that are not 
included in the territorial sea or in the internal waters of a State. 

AlRticlb 2 

The high seas being open to all nations, no State may validly 
purport to subject any part of them to its sovereignty. Freedom 
of the high seas is exercised under the conditions laid down by these 
articles and by the other rules of international law. It comprises, 
inter alia, both for coastal and non-coastal States : 

( 1 ) Freedom of navigation ; 

(2) Freedom of fishing ; 

( 3 ) Freedom to lay submarine cables and pipelines ; 

(4) Freedom to fly over the high seas. 

These freedoms, and others which are recognized by the general prin- 
ciples of international law, shall be exercised by all States with 
reasonable regard to the interests of other States in their exercise of 
the freedom of the high seas. 

Article 3 

1. In order to enjoy the freedom of the seas on equal terms with 
coastal States, States having no sea-coast should have free access to 



4 Adopted Apr. 27 (U.N. doc. A/CONF. 13/L. 53 and corr. 1). 

203 



204 

the sea. To this end a State situated between the sea and a State 
having no sea-coast shall by common agreement with the latter and 
in conf ormity with existing international conventions accord : 

(a) to the State having no sea-coast, on a basis of reciprocity, 
free transit through their territory, and 

(b) to ships flying the flag of that State treatment equal to that 
accorded to their own ships, or to the ships of any other States, as 
regards access to sea ports and the use of such ports. 

2. A State situated between the sea and the State having no sea- 
coast shall settle, by mutual agreement with the latter, and taking 
into account the rights of the coastal State or State of transit and the 
special conditions of the State having no sea-coast, all matters relat- 
ing to freedom of transit and equal treatment in ports, in case such 
States are not already parties to existing international conventions. 

Article 4 

Every State, whether coastal or not, has the right to sail ships 
under its flag on the high seas. 

Article 5 

1. Each State shall fix the conditions for the grant of its nationality 
to ships, for the registration of ships in its territory, and for the right 
to fly its flag. Ships have the nationality of the State whose flag 
they are entitled to fly. There must exist a genuine link between the 
State and the ship; in particular, the State must effectively exercise 
its jurisdiction and control in administrative, technical and social 
matters over ships flying its flag. 

2. Each State shall issue to ships to which it has granted the right 
to fly its flag documents to that effect. 

Article 6 

1. Ships shall sail under the flag of one State only and, save in 
exceptional cases expressly provided for in international treaties or 
in these articles, shall be subject to its exclusive jurisdiction on the 
high seas. A ship may not change its flag during a voyage or while 
in a port of call, save in the case of a real transfer of ownership or 
change of registry. 

2. A ship which sails under the flags of two or more States, using 
them according to convenience, may not claim any of the nationalities 
in question with respect to any other State, and may be assimilated 
to a ship without nationality. 



205 

Article 7 

The provisions of the preceding articles do not prejudice the ques- 
tion of ships employed on the official service of an intergovernmental 
organization flying the flag of the organization. 

Article 8 

1. Warships on the high seas have complete immunity from the 
jurisdiction of any State other than the flag State. 

2. For the purposes of these articles, the term "warship" means 
a ship belonging to the naval forces of a State and bearing the external 
marks distinguishing warships of its nationality, under the command 
of an officer duly commissioned by the government and whose name 
appears in the Navy List, and manned by a crew who are under 
regular naval discipline. 

Article 9 

Ships owned or operated by a State and used only on government 
non- commercial service shall, on the high seas, have complete im- 
munity from the jurisdiction of any State other than the flag State. 

Article 10 

1. Every State shall take such measures for ships under its flag 
as are necessary to ensure safety at sea with regard inter alia to : 

(a) the use of signals, the maintenance of communications and 
the prevention of collisions ; 

(b) the manning of ships and labour conditions for crews taking 
into account the applicable international labour instruments ; 

(c) the construction, equipment and seaworthiness of ships. 

2. In taking such measures each State is required to conform to 
generally accepted international standards and to take any steps which 
may be necessary to ensure their observance. 

Article 11 

1. In the event of a collision or of any other incident of navigation 
concerning a ship on the high seas, involving the penal or disciplinary 
responsibility of the master or of any other person in the service of 
the ship, no penal or disciplinary proceedings may be instituted 
against such persons except before the judicial or administrative 
authorities either of the flag State or of the State of which such person 
is a national. 

2. In disciplinary matters, the State which has issued a master's 
certificate or a certificate of competence or license shall alone be com- 



206 

petent, after due legal process, to pronounce the withdrawal of such 
certificates, even if the holder is not a national of the State which 
issued them. 

3. No arrest or detention of the ship, even as a measure of in- 
vestigation, shall be ordered by any authorities other than those of 
the flag State. 

Article 12 

1. Every State shall require the master of a ship sailing under its 
flag, in so far as he can do so without serious danger to the ship, the 
crew or the passengers, 

(a) to render assistance to any person found at sea in danger of 
being lost; 

(b) to proceed with all possible speed to the rescue of persons 
in distress if informed of their need of assistance, in so far as such 
action may reasonably be expected of him ; 

(c) after a collision, to render assistance to the other ship, her 
crew and her passengers and, where possible, to inform the other ship 
of the name of his own ship, her port of registry and the nearest port 
at which she will call. 

2. Every coastal State shall promote the establishment and main- 
tenance of an adequate and effective search and rescue service regard- 
ing safety on and over the sea and — where circumstances so require — 
by way of mutual regional arrangements co-operate with neighbour- 
ing States for this purpose. 

Article 13 

Every State shall adopt effective measures to prevent and punish 
the transport of slaves in ships authorized to fly its flag, and to pre- 
vent the unlawful use of its flag for that purpose. Any slave taking 
refuge on board any ship, whatever its flag, shall ipso facto be free. 

Article 14 

All States shall co-operate to the fullest possible extent in the 
repression of piracy on the high seas or in any other place outside 
the jurisdiction of any State. 

Article 15 

Piracy consists of any of the following acts : 

(1) Any illegal acts of violence, detention or any act of depreda- 
tion committed for private ends by the crew or the passengers of a 
private ship or a private aircraft, and directed : 



207 

(a) On the high seas, against another ship or aircraft, or against 
persons or property on board such ship or aircraft ; 

(b) Against a ship, aircraft, persons or property in a place out- 
side the jurisdiction of any State ; 

(2) Any act of voluntary participation in the operation of a ship 
or of an aircraft with knowledge of facts making it a pirate ship or 
aircraft ; 

(3) Any act of inciting or of intentionally facilitating an act 
described in sub-paragraph 1 or sub-paragraph 2 of this article. 

Article 16 

The acts of piracy, as defined in article 15, committed by a warship, 
government ship or government aircraft whose crew has mutinied 
and taken control of the ship or aircraft are assimilated to acts com- 
mitted by a private ship. 

Article 17 

A ship or aircraft is considered a pirate ship or aircraft if it is 
intended by the persons in dominant control to be used for the pur- 
pose of committing one of the acts referred to in article 15. The 
same applies if the ship or aircraft has been used to commit any such 
act, so long as it remains under the control of the persons guilty of 
that act. 

Article 18 

A ship or aircraft may retain its nationality although it has become 
a pirate ship or aircraft. The retention or loss of nationality is de- 
termined by the law of the State from which such nationality was 
originally derived. 

Article 19 

On the high seas, or in any other place outside the jurisdiction of 
any State, every State may seize a pirate ship or aircraft, or a ship 
taken by piracy and under the control of pirates, and arrest the per- 
sons and seize the property on board. The courts of the State which 
carried out the seizure may decide upon the penalties to be imposed, 
and may also determine the action to be taken with regard to the 
ships, aircraft or property, subject to the rights of third parties acting 
in good faith. 

Article 20 

Where the seizure of a ship or aircraft on suspicion of piracy has 
been effected without adequate grounds, the State making the seizure 
shall be liable to the State the nationality of which is possessed by 
the ship or aircraft, for any loss or damage caused by the seizure. 



208 

Article 21 

A seizure on account of piracy may only be carried out by warships 
or military aircraft, or other ships or aircraft on government service 
authorized to that effect. 

Article 22 

1. Except where acts of interference derive from powers conferred 
by treaty, a warship which encounters a foreign merchant ship on the 
high seas is not justified in boarding her unless there is reasonable 
ground for suspecting: 

(a) That the ship is engaged in piracy ; or 

(b) That the ship is engaged in the slave trade ; or 

(c) That, though flying a foreign flag or refusing to show its 
flag, the ship is, in reality, of the same nationality as the warship. 

2. In the cases provided for in sub-paragraphs (a), (b) and (c) 
above, the warship may proceed to verify the ship's right to fly its 
flag. To this end, it may send a boat under the command of an officer 
to the suspected ship. If suspicion remains after the documents have 
been checked, it may proceed to a further examination on board the 
ship, which must be carried out with all possible consideration. 

3. If the suspicions prove to be unfounded, and provided that the 
ship boarded has not committed any act justifying them, it shall be 
compensated for any loss or damage that may have been sustained. 

Article 23 

1. The hot pursuit of a foreign ship may be undertaken when the 
competent authorities of the coastal State have good reason to believe 
that the ship has violated the laws and regulations of that State. 
Such pursuit must be commenced when the foreign ship or one of its 
boats is within the internal waters or the territorial sea or the con- 
tiguous zone of the pursuing State, and may only be continued out- 
side the territorial sea or the contiguous zone if the pursuit has not 
been interrupted. It is not necessary that, at the time when the 
foreign ship within the territorial sea or the contiguous zone receives 
the order to stop, the ship giving the order should likewise be within 
the territorial sea or the contiguous zone. If the foreign ship is within 
a contiguous zone, as defined in article 24 of the Convention on the 
Territorial Sea and the Contiguous Zone, the pursuit may only be 
undertaken if there has been a violation of the rights for the protec- 
tion of which the zone was established. 

2. The right of hot pursuit ceases as soon as the ship pursued enters 
the territorial sea of its own country or of a third State. 



209 

3. Hot pursuit is not deemed to have begun unless the pursuing ship 
has satisfied itself by such practicable means as may be available 
that the ship pursued or one of its boats or other craft working as 
a team and using the ship pursued as a mother ship are within the 
limits of the territorial sea, or as the case may be within the con- 
tiguous zone. The pursuit may only be commenced after a visual or 
auditory signal to stop has been given at a distance which enables 
it to be seen or heard by the foreign ship. 

4. The right of hot pursuit may be exercised only by warships or 
military aircraft, or other ships or aircraft on government service 
specially authorized to that effect. 

5. Where hot pursuit is effected by an aircraft : 

(a) The provisions of paragraph 1 to 3 of the present article 
shall apply mutatis mutandis; 

(b) The aircraft giving the order to stop must itself actively 
pursue the ship until a ship or aircraft of the coastal State, sum- 
moned by the aircraft, arrives to take over the pursuit, unless the 
aircraft is itself able to arrest the ship. It does not suffice to justify 
an arrest on the high seas that the ship was merely sighted by the 
aircraft as an offender or suspected offender, if it was not both ordered 
to stop and pursued by the aircraft itself or other aircraft or ships 
which continue the pursuit without interruption. 

6. The release of a ship arrested within the jurisdiction of a State 
and escorted to a port of that State for the purposes of an enquiry 
before the competent authorities, may not be claimed solely on the 
ground that the ship, in the course of its voyage, was escorted across 
a portion of the high seas, if the circumstances rendered this necessary. 

7. Where a ship has been stopped or arrested on the high seas in 
circumstances which do not justify the exercise of the right of hot 
pursuit, it shall be compensated for any loss or damage that may have 
been thereby sustained. 

Article 24 

Every State shall draw up regulations to prevent pollution of the 
seas by the discharge of oil from ships or pipelines or resulting from 
the exploitation and exploration of the seabed and its subsoil, taking 
account of existing treaty provisions on the subject. 

Article 25 

1. Every State shall take measures to prevent pollution of the seas 
from the dumping of radioactive waste, taking into account any 
standards and regulations which may be formulated by the competent 
international organizations. 



210 

2. All States shall co-operate with the competent international 
organizations in taking measures for the prevention of pollution of 
the seas or air space above, resulting from any activities with radio- 
active materials or other harmful agents. 

Article 26 

1. All States shall be entitled to lay submarine cables and pipelines 
on the bed of the high seas. 

2. Subject to its right to take reasonable measures for the ex- 
ploration of the continental shelf and the exploitation of its natural 
resources, the coastal State may not impede the laying or maintenance 
of such cables or pipelines. 

3. When laying such cables or pipelines the State in question shall 
pay due regard to cables or pipelines already in position on the seabed. 
In particular, possibilities of repairing existing cables or pipelines 
shall not be prejudiced. 

Article 27 

Every State shall take the necessary legislative measures to provide 
that the breaking or injury by a ship flying its flag or by a person 
subject to its jurisdiction of a submarine cable beneath the high seas 
done willfully or through culpable negligence, in such a manner as 
to be liable to interrupt or obstruct telegraphic or telephonic com- 
munications, and similarly the breaking or injury of a submarine 
pipeline or high-voltage power cable shall be a punishable offence. 
This provision shall not apply to any break or injury caused by 
persons who acted merely with the legitimate object of saving their 
lives or their ships, after having taken all necessary precautions to 
avoid such break or injury. 

Article 28 

Every State shall take the necessary legislative measures to provide 
that, if persons subject to its jurisdiction who are the owners of a 
cable or pipeline beneath the high seas, in laying or repairing that 
cable or pipeline, cause a break in or injury to another cable or pipe- 
line, they shall bear the cost of the repairs. 

Article 29 

Every State shall take the necessary legislative measures to ensure 
that the owners of ships who can prove that they have sacrificed an 
anchor, a net or any other fishing gear, in order to avoid injuring a 
submarine cable or pipeline, shall be indemnified by the owner of 



211 

the cable or pipeline, provided that the owner of the ship has taken 
all reasonable precautionary measures beforehand. 

Article 30 

The provisions of this Convention shall not affect Conventions 
or other international agreements already in force, as between States 
Parties to them. 

Article 31 

This Convention shall, until 31 October 1958, be open for signature 
by all States Members of the United Nations or of any of the Spe- 
cialized Agencies, by any other State invited to take part in the 
United Nations Conference on the Law of the Sea, and by any other 
State invited by the General Assembly to become a Party to the 
Convention. 

Article 32 

This Convention is subject to ratification. The instruments of 
ratification shall be deposited with the Secretary-General of the 
United Nations. 

Article 33 

This Convention shall be open for accession by any States belong- 
ing to any of the categories mentioned in article 31. The instruments 
of accession shall be deposited with the Secretary-General of the 
United Nations. 

Article 34: 

1. This Convention shall come into force on the thirtieth day fol- 
lowing the date of deposit of the twenty-second instrument of 
ratification or accession with the Secretary-General of the United 
Nations. 

2. For each State ratifying or acceding to the Convention after the 
deposit of the twenty-second instrument of ratification or accession, 
the Convention shall enter into force on the thirtieth day after 
deposit by such State of its instruments of ratification or accession. 

Article 35 

1. After the expiration of a period of five years from the date on 
which this Convention shall enter into force a request for the revision 
of this Convention may be made at any time by any Contracting Party 
by means of a notification in writing addressed to the Secretary- 
General. 



212 

2. The General Assembly of the United Nations shall decide upon 
the steps, if any, to be taken in respect of such request. 

Article 36 

The Secretary-General of the United Nations shall inform all 
States Members of the United Nations and the other States referred 
to in article 31 : 

(a) Of signatures to this Convention and of the deposit of instru- 
ments of ratification or accession, in accordance with articles 31, 32 
and 33. 

(b) Of the date on which this Convention will come into force, 
in accordance with article 34 ; 

(c) Of requests for revision in accordance with article 35. 

Article 37 

The original of this Convention of which the Chinese, English, 
French, Russian and Spanish texts are equally authentic, shall be 
deposited with the Secretary-General of the United Nations who shall 
send certified copies thereof to all States referred to in article 31. 

In witness whereof the undersigned Plenipotentiaries, being duly 
authorized thereto by their respective Governments, have signed this 
Convention. 

Done at Geneva, this twenty-ninth day of April one thousand nine 
hundred and fifty-eight. 



APPENDIX C 

CONVENTION ON FISHING AND CONSERVATION OF 

THE LIVING RESOURCES OF THE HIGH SEAS 5 

The States Parties to this Convention, 

Considering that the development of modern techniques for the 
exploitation of the living resources of the sea, increasing man's ability 
to meet the need of the world's expanding population for food, has 
exposed some of these resources to the danger of being over-exploited, 

Considering also that the nature of the problems involved in the 
conservation of the living resources of the high seas is such that there 
is a clear necessity that they be solved, whenever possible, on the basis 
of international co-operation through the concerted action of all the 
States concerned, 

Have agreed as follows : 

Article 1 

1. All States have the right for their nationals to engage in fishing 
on the high seas, subject (a) to their treaty obligations, (b) to the 
interests and rights of coastal States as provided for in this conven- 
tion, and (c) to the provisions contained in the following articles 
concerning conservation of the living resources of the high seas. 

2. All States have the duty to adopt, or to co-operate with other 
States in adopting, such measures for their respective nationals as 
may be necessary for the conservation of the living resources of the 
high seas. 

Article 2 

As employed in this Convention, the expression "conservation of 
the living resources of the high seas" means the aggregate of the 
measures rendering possible the optimum sustainable yield from 
those resources so as to secure a maximum supply of food and other 
marine products. Conservation programmes should be formulated 



Adopted Apr. 26 (U.N. doc. A/CONF. 13/L. 54 and Add. 1) . 



213 



214 

with a view to securing in the first place a supply of food for human 
consumption. 

Article 3 

A State whose nationals are engaged in fishing any stock or stocks 
of fish or other living marine resources in any area of the high seas 
where the nationals of other States are not thus engaged shall adopt, 
for its own nationals, measures in that area when necessary for the 
purpose of the conservation of the living resources affected. 

Article 4 

1. If the nationals of two or more States are engaged in fishing the 
same stock or stocks of fish or other living marine resources in any 
area or areas of the high seas, these States shall, at the request of any 
of them, enter into negotiations with a view to prescribing by agree- 
ment for their nationals the necessary measures for the conservation of 
the living resources affected. 

2. If the States concerned do not reach agreement within twelve 
months, any of the parties may initiate the procedure contemplated by 
article 9. 

Article 5 

1. If, subsequent to the adoption of the measures referred to in 
articles 3 and 4, nationals of other States engage in fishing the same 
stock or stocks of fish or other living marine resources in any area or 
areas of the high seas, the other States shall apply the measures, which 
shall not be discriminatory in form or in fact, to their own nationals 
not later than seven months after the date on which the measures shall 
have been notified to the Director General of the Food and Agricul- 
ture Organization of the United Nations. The Director General shall 
notify such measures to any State which so requests and, in any case, 
to any State specified by the State initiating the measure. 

2. If these other States do not accept the measures so adopted and 
if no agreement can be reached within twelve months, any of the in- 
terested parties may initiate the procedure contemplated by article 9. 
Subject to paragraph 2 of article 10, the measures adopted shall re- 
main obligatory pending the decision of the special commission. 

Article 6 

1. A coastal State has a special interest in the maintenance of the 
productivity of the living resources in any area of the high seas adja- 
cent to its territorial sea. 

2. A coastal State is entitled to take part on an equal footing in 
any system of research and regulation for purposes of conservation 



215 

of the living resources of the high seas in that area, even though its 
nationals do not carry on fishing there. 

3. A State whose nationals are engaged in fishing in any area of the 
high seas adjacent to the territorial sea of a coastal State shall, at the 
request of that coastal State, enter into negotiations with a view to 
prescribing by agreement the measures necessary for the conservation 
of the living resources of the high seas in that area. 

4. A State whose nationals are engaged in fishing in any area of the 
high seas adjacent to the territorial sea of a coastal State shall not 
enforce conservation measures in that area which are opposed to those 
which have been adopted by the coastal State, but may enter into ne- 
gotiations with the coastal State with a view to prescribing by agree- 
ment the measures necessary for the conservation of the living 
resources of the high seas in that area. 

5. If the States concerned do not reach agreement with respect to 
conservation measures within twelve months, any of the parties may 
initiate the procedure contemplated by article 9. 

Article 7 

1. Having regard to the provisions of paragraph 1 of article 6, any 
coastal State may, with a view to the maintenance of the productivity 
of the living resources of the sea, adopt unilateral measures of con- 
servation appropriate to any stock of fish or other marine resources in 
any area of the high seas adjacent to its territorial sea, provided that 
negotiations to that effect with the other States concerned have not 
led to an agreement within six months. 

2. The measures which the coastal State adopts under the previous 
paragraph shall be valid as to other States only if the following re- 
quirements are fulfilled : 

(a) That there is a need for urgent application of conservation 
measures in the light of the existing knowledge of the fishery ; 

(b) That the measures adopted are based on appropriate scien- 
tific findings ; 

(c) That such measures do not discriminate in form or in fact 
against foreign fishermen. 

3. These measures shall remain in force pending the settlement, in 
accordance with the relevant provisions of this Convention, of any 
disagreement as to their validity. 

4. If the measures are not accepted by the other States concerned, 
any of the parties may initiate the procedure contemplated by article 
9. Subject to paragraph 2 of article 10, the measures adopted shall 
remain obligatory pending the decision of the special commission. 

5. The principles of geographical demarcation as defined in article 



216 

12 of the Convention on the Territorial Sea and the Contiguous Zone 
shall be adopted when coasts of different States are involved. 

Article 8 

1. Any State which, even if its nationals are not engaged in fish- 
ing in an area of the high seas not adjacent to its coast, has a special 
interest in the conservation of the living resources of the high seas in 
that area, may request the State or States whose nationals are engaged 
in fishing there to take the necessary measures of conservation under 
articles 3 and 4 respectively, at the same time mentioning the scientific 
reasons which in its opinion make such measures necessary, and indi- 
cating its special interest. 

2. If no agreement is reached within twelve months, such State 
may initiate the procedure contemplated by article 9. 

Article 9 

1. Any dispute which may arise between States under articles 4, 5, 6, 
7 and 8 shall, at the request of any of the parties, be submitted for set- 
tlement to a special commission of five members, unless the parties 
agree to seek a solution by another method of peaceful settlement, as 
provided for in Article 33 of the Charter of the United Nations. 

2. The members, one of whom shall be designated as chairman, 
shall be named by agreement between the States in dispute within 
three months of the request for settlement in accordance with the pro- 
visions of this article. Failing agreement they shall, upon the re- 
quest of any State party, be named by the Secretary-General of the 
United Nations, within a further three-month period, in consultation 
with the States in dispute and with the President of the International 
Court of Justice and the Director-General of the Food and Agricul- 
ture Organization of the United Nations, from amongst well-qualified 
persons being nationals of States not involved in the dispute and 
specializing in legal, administrative or scientific questions relating to 
fisheries, depending upon the nature of the dispute to be settled. Any 
vacancy arising after the original appointment shall be filled in the 
same manner as provided for the initial selection. 

3. Any State party to proceedings under these articles shall have 
the right to name one of its nationals to the special commission, with 
the right to participate fully in the proceedings on the same footing 
as a member of the commission but without the right to vote or to take 
part in the writing of the commission's decision. 

4. The commission shall determine its own procedure, assuring 
each party to the proceedings a full opportunity to be heard and to 



217 

present its case. It shall also determine how the costs and expenses 
shall be divided between the parties to the dispute, failing agreement 
by the parties on this matter. 

5. The special commission shall render its decision within a period 
of five months from the time it is appointed unless it decides, in case 
of necessity, to extend the time limit for a period not exceeding three 

months. 

6. The special commission shall, in reaching its decisions, adhere to 
these articles and to any special agreements between the disputing 
parties regarding settlement of the dispute. 

7. Decisions of the commission shall be by majority vote. 

Article 10 

1. The special commission shall, in disputes arising under article 
7, apply the criteria listed in paragraph 2 of that article. In disputes 
under articles 4, 5, 6 and 8 the commission shall apply the following 
criteria, according to the issues involved in the dispute : 

(a) Common to the determination of disputes arising under 
articles 4, 5 and 6 are the requirements : 

(i) That scientific findings demonstrate the necessity of con- 
servation measures; 

(ii) That the specific measures are based on scientific findings 
and are practicable; and 

(iii) That the measures do not discriminate, in form or in 
fact, against fishermen of other States. 

(b) Applicable to the determination of disputes arising under 
article 8 is the requirement that scientific findings demonstrate the 
necessity for conservation measures, or that the conservation pro- 
gramme is adequate, as the case may be. 

2. The special commission may decide that pending its award the 
measures in dispute shall not be applied, provided that, in the case of 
disputes under article 7, the measures shall only be suspended when 
it is apparent to the commission on the basis of prima facie evidence 
that the need for the urgent application of such measures does not 
exist. 

Article 11 

The decisions of the special commission shall be binding on the 
States concerned and the provisions of paragraph 2 of Article 94 of the 
Charter of the United Nations shall be applicable to those decisions. 
If the decision is accompanied by any recommendations, they shall 
receive the greatest possible consideration. 



607G31— ei 15 



218 

Article 12 

1. If the factual basis of the award of the special commission is 
altered by substantial changes in the conditions of the stock or stocks 
of fish or other living marine resources or in methods of fishing, any of 
the States concerned may request the other States to enter into negoti- 
ations with a view to prescribing by agreement the necessary modifica- 
tions in the measures of conservation. 

2. If no agreement is reached within a reasonable period of time, 
any of the States concerned may again resort to the procedure con- 
templated by article 9 provided that at least two years have elapsed 
from the original award. 

Article 13 

1. The regulation of fisheries conducted by means of equipment 
embedded in the floor of the sea in areas of the high seas adjacent 
to the territorial sea of a State may be undertaken by that State 
where such fisheries have long been maintained and conducted by 
its nationals, provided that non-nationals are permitted to participate 
in such activities on an equal footing with nationals except in areas 
where such fisheries have by long usage been exclusively enjoyed by 
such nationals. Such regulations will not, however, affect the gen- 
eral status of the areas as high seas. 

2. In this article, the expression "fisheries conducted by means of 
equipment embedded in the floor of the sea" means those fisheries 
using gear with supporting members embedded in the sea floor, con- 
structed on a site and left there to operate permanently, or if removed, 
restored each season on the same site. 

Article 14 

In articles 1, 3, 4, 5, 6 and 8, the term "nationals" means fishing 
boats or craft of any size having the nationality of the State con- 
cerned, according to the law of that State, irrespective of the na- 
tionality of the members of their crews. 

Article 15 

This Convention shall, until 31 October 1958, be open for signature 
by all States Members of the United Nations or of any of the spe- 
cialized agencies, and by any other State invited by the General 
Assembly to become a Party to the Convention. 

Article 16 

This Convention is subject to ratification. The instruments of 
ratification shall be deposited with the Secretary- General of the 
United Nations. 



219 

Article 17 

This Convention shall be open for accession by any States belonging 
to any of the categories mentioned in article 15. The instruments of 
accession shall be deposited with the Secretary-General of the United 
Nations. 

Article 18 

1. This Convention shall come into force on the thirtieth day fol- 
lowing the date of deposit of the twenty-second instrument of ratifi- 
cation or accession with the Secretary-General of the United Nations. 

2. For each State ratifying or acceding to the Convention after the 
deposit of the twenty-second instrument of ratification or accession, 
the Convention shall enter into force on the thirtieth day after deposit 
by such State of its instruments of ratification or accession. 

Article 19 

1. At the time of signature, ratification or accession, any State may 
make reservations to articles of the Convention other than to articles 
6, 7, 9, 10, 11 and 12 inclusive. 

2. Any Contracting State making a reservation in accordance with 
the preceding paragraph may at any time withdraw the reservation 
by a communication to that effect addressed to the Secretary-General 
of the United Nations. 

Article 20 

1. After the expiration of a period of five years from the date on 
which this Convention shall enter into force a request for the revision 
of this Convention may be made at any time by any Contracting Party 
by means of a notification in writing addressed to the Secretary- 
General. 

2. The General Assembly of the United Nations shall decide upon 
the steps, if any, to be taken in respect of such request. 

Article 21 

The Secretary-General of the United Nations shall inform all States 
Members of the United Nations and the other States referred to in 
article 15 : 

(a) Of signatures to this Convention and of the deposit of instru- 
ments of ratification or accession, in accordance with articles 15, 16 
and 17; 

(b) Of the date on which this Convention will come into force, in 
accordance with article 18 ; 

(c) Of requests for revision in accordance with article 20 ; 



220 

(d) Of reservations to this Convention, in accordance with article 
19. 

Article 22 

The original of this Convention of which the Chinese, English, 
French, Russian and Spanish texts are equally authentic, shall be 
deposited with the Secretary-General of the United Nations, who 
shall send certified copies thereof to all States referred to in article 15. 

In witness whereof the undersigned Plenipotentiaries, being duly 
authorized thereto by their respective Governments, have signed this 
Convention. 

Done at Geneva, this twenty-ninth day of April one thousand nine 
hundred and fifty-eight. 



APPENDIX D 

CONVENTION ON THE CONTINENTAL SHELF 6 

The States Parties to this Convention, Have agreed as follows: 

Article 1 

For the purpose of these articles, the term "continental shelf" is 
used as referring (a) to the seabed and subsoil of the submarine areas 
adjacent to the coast but outside the area of the territorial sea, to a 
depth of 200 metres or, beyond that limit, to where the depth of the 
superjacent waters admits of the exploitation of the natural resources 
of the said areas; (b) to the seabed and subsoil of similar submarine 
areas adjacent to the coasts of islands. 

Article 2 

1. The coastal State exercises over the continental shelf sovereign 
rights for the purpose of exploring it and exploiting its natural 
resources. 

2. The rights referred to in paragraph 1 of this article are exclusive 
in the sense that if the coastal State does not explore the continental 
shelf or exploit its natural resources, no one may undertake these 
activities, or make a claim to the continental shelf, without the ex- 
press consent of the coastal State. 

3. The rights of the coastal State over the continental shelf do not 
depend on occupation, effective or notional, or on any express 
proclamation. 

4. The natural resources referred to in these articles consist of the 
mineral and other non-living resources of the sea-bed and subsoil to- 
gether with living organisms belonging to sedentary species, that 
is to say, organisms which, at the harvestable stage, either are im- 
mobile on or under the sea-bed or are unable to move except in con- 
stant physical contact with the sea-bed or the subsoil. 

Article 3 

The rights of the coastal State over the continental shelf do not 
affect the legal status of the superjacent waters as high seas, or that 
of the airspace above those waters. 

8 Adopted Apr. 26 (U.N. doc. A/CONF. 13/L. 55) . 

221 



222 

Article 4 

Subject to its right to take reasonable measures for the explora- 
tion of the continental shelf and the exploitation of its natural re- 
sources, the coastal State may not impede the laying or maintenance 
of submarine cables or pipelines on the continental shelf. 

Article 5 

1. The exploration of the continental shelf and the exploitation of 
its natural resources must not result in any unjustifiable interference 
with navigation, fishing or the conservation of the living resources of 
the sea, nor result in any interference with fundamental oceano- 
graphic or other scientific research carried out with the intention of 
open publication. 

2. Subject to the provisions of paragraphs 1 and 6 of this article, 
the coastal State is entitled to construct and maintain or operate on 
the continental shelf installations and other devices necessary for its 
exploration and the exploitation of its natural resources, and to 
establish safety zones around such installations and devices and to 
take in those zones measures necessary for their protection. 

3. The safety zones referred to in paragraph 2 of this article may 
extend to a distance of 500 metres around the installations and other 
devices which have been erected, measured from each point of their 
outer edge. Ships of all nationalities much respect these safety zones. 

4. Such installations and devices, though under the jurisdiction of 
the coastal State, do not possess the status of islands. They have 
no territorial sea of their own, and their presence does not affect the 
delimitation of the territorial sea of the coastal State. 

5. Due notice must be given of the construction of any such instal- 
lations, and permanent means for giving warning of their presence 
must be maintained. Any installations which are abandoned or dis- 
used must be entirely removed. 

6. Neither the installations or devices, nor the safety zones around 
them, may be established where interference may be caused to the 
use of recognized sea lanes essential to international navigation. 

7. The coastal State is obliged to undertake, in the safety zones, 
all appropriate measures for the protection of the living resources of 
the sea from harmful agents. 

8. The consent of the coastal State shall be obtained in respect of 
any research concerning the continental shelf and undertaken there. 
Nevertheless, the coastal State shall not normally withhold its consent 
if the request is submitted by a qualified institution with a view to 
purely scientific research into the physical or biological characteris- 
tics of the continental shelf, subject to the proviso that the coastal 



223 

State shall have the right, if it so desires, to participate or to be 
represented in the research, and that in any event the results shall 
be published. 

Article 6 

1. Where the same continental shelf is adjacent to the territories of 
two or more States whose coasts are opposite each other, the boundary 
of the continental shelf appertaining to such States shall be determined 
by agreement between them. In the absence of agreement, and unless 
another boundary line is justified by special circumstances, the bound- 
ary is the median line, every point of which is equidistant from the 
nearest points of the baselines from which the breadth of the terri- 
torial sea of each State is measured. 

2. Where the same continental shelf is adjacent to the territories 
of two adjacent States, the boundary of the continental shelf shall 
be determined by agreement between them. In the absence of agree- 
ment, and unless another boundary line is justified by special cir- 
cumstances, the boundary shall be determined by application of the 
principle of equidistance from the nearest points of the baselines 
from which the breadth of the territorial sea of each State is 
measured. 

3. In delimiting the boundaries of the continental shelf, any lines 
which are drawn in accordance with the principles set out in para- 
graphs 1 and 2 of this article should be defined with reference to 
charts and geographical features as they exist at a particular date, 
and reference should be made to fixed permanent identifiable points 
on the land. 

Article 7 

The provisions of these articles shall not prejudice the right of 
the coastal State to exploit the subsoil by means of tunneling irre- 
spective of the depth of water above the subsoil. 

Article 8 

This Convention shall, until 31 October 1958, be open for signature 
by all States Members of the United Nations or of any of the special- 
ized agencies, and by any other State invited by the General As- 
sembly to become a Party to the Convention. 

Article 9 

This Convention is subject to ratification. The instruments of rati- 
fication shall be deposited with the Secretary-General of the United 
Nations. 



224 

Article 10 

This Convention shall be open for accession by any States belonging 
to any of the categories mentioned in article 8. The instruments of 
accession shall be deposited with the Secretary-General of the United 
Nations. 

Article 11 

1. This Convention shall come into force on the thirtieth day follow- 
ing the date of deposit of the twenty-second instrument of ratification 
or accession with the Secretary-General of the United Nations. 

2. For each State ratifying or acceding to the Convention after the 
deposit of the twenty-second instrument of ratification or accession, 
the Convention shall enter into force on the thirtieth day after deposit 
by such State of its instruments of ratification or accession. 

Article 12 

1. At the time of signature, ratification or accession, any State may 
make reservations to articles of the Convention other than to articles 
1 to 3 inclusive. 

2. Any Contracting State making a reservation in accordance with 
the preceding paragraph may at any time withdraw the reservation 
by a communication to that effect addressed to the Secretary-General 
of the United Nations. 

Article 13 

1. After the expiration of a period of five years from the date on 
which this Convention shall enter into force, a request for the revision 
of this Convention may be made at any time by any Contracting Party 
by means of a notification in writing addressed to the Secretary- 
General. 

2. The General Assembly of the United Nations shall decide upon 
the steps, if any, to be taken in respect of such request. 

Article 14 

The Secretary-General of the United Nations shall inform all 
States Members of the United Nations and the other States referred 
to in article 8 : 

(a) Of signatures to this Convention and of the deposit of instru- 
ments of ratification or accession, in accordance with articles 8, 9 and 
10. 



225 

(b) Of the date on which this Convention will come into force, in 
accordance with article 11. 

(c) Of requests for revision in accordance with article 13. 

(d) Of reservations to this Convention, in accordance with article 
12. 

Article 15 

The original of this Convention, of which the Chinese, English, 
French, Russian and Spanish texts are equally authentic, shall be de- 
posited with the Secretary-General of the United Nations, who shall 
send certified copies thereof to all States referred to in article 8. 

In witness ivhereof the undersigned plenipotentiaries, being duly 
authorized thereto by their respective Governments, have signed this 
Convention. 

Done at Geneva, this twenty-ninth day of April one thousand nine 
hundred and fifty-eight. 



APPENDIX E 

OPTIONAL PROTOCOL OF SIGNATURE CONCERNING 
THE COMPULSORY SETTLEMENT OF DISPUTES 7 

The States Parties to this Protocol and to any one or more of the 
Conventions on the Law of the Sea adopted by the United Nations 
Conference on the Law of the Sea held at Geneva from 24 February 
1958 to 27 April 1958, 

Expressing their wish to resort, in all matters concerning them in 
respect of any dispute arising out of the interpretation or application 
of any article of any Convention on the Law of the Sea of 29 April 
1958, to the compulsory jurisdiction of the International Court of 
Justice, unless some other form of settlement is provided in the Con- 
vention or has been agreed upon by the Parties within a reasonable 
period, 

Have agreed as folloivs: 

Article I 

Disputes arising out of the interpretation or application of any 
Convention on the Law of the Sea shall lie within the compulsory 
jurisdiction of the International Court of Justice, and may accord- 
ingly be brought before the Court by an application made by any 
party to the dispute being a Party to this Protocol. 

Article II 

This undertaking relates to all the provisions of any Convention on 
the Law of the Sea except, in the Convention on Fishing and Conser- 
vation of Living Resources of the High Seas, articles 4, 5, 6, 7 and 8, 
to which articles 9, 10, 11 and 12 of that Convention remain applicable. 

Article III 

The Parties may agree, within a period of two months after one 
party has notified its opinion to the other that a dispute exists, to 
resort not to the Court but to an arbitral tribunal. After the expiry 



7 Adopted Apr. 26 (U.N. doc. A/CONF. 13/L. 57) . 
226 



227 

of the said period, either Party to this Protocol may bring the dispute 
before the Court by an application. 

Article IV 

1. Within the same period of two months, the Parties to this 
Protocol may agree to adopt a conciliation procedure before resorting 
to the Court. 

2. The conciliation commission shall make its recommendations 
within five months after its appointment. If its recommendations 
are not accepted by the parties to the dispute within two months after 
they have been delivered, either party may bring the dispute before 
the Court by an application. 

Article V 

This Protocol shall remain open for signature by all States who 
become Parties to any Convention on the Law of the Sea adopted by 
the United Nations Conference on the Law of the Sea and is subject 
to ratification, where necessary, according to the constitutional re- 
quirements of the signatory States. 

Article VI 

The Secretary-General of the United Nations shall inform all 
States who become Parties to any Convention on the Law of the Sea 
of signatures to this Protocol and of the deposit of instruments of 
ratification in accordance with article V. 

Article VII 

The original of this Protocol, of which the Chinese, English, 
French, Russian and Spanish texts are equally authentic, shall be 
deposited with the Secretary-General of the United Nations, who 
shall send certified copies thereof to all States referred to in article V. 

In witness whereof the undersigned Plenipotentiaries, being duly 
authorized thereto by their respective Governments, have signed this 
Protocol. 

Done at Geneva, this twenty-ninth day of April one thousand nine 
hundred and fifty-eight. 



APPENDIX F 
RESOLUTIONS ADOPTED BY CONFERENCE 8 

(1) NUCLEAR TESTS ON THE HIGH SEAS 

Resolution adopted on 27 April 1958, on the report of the Second 
Committee, in connexion with article 2 of the Convention on the High 
Seas 

The United Nations Conference on the Law of the Sea, 

Recalling that the Conference has been convened by the General 
Assembly of the United Nations in accordance with resolution 1105 
(XI) of 21 February 1957, 

Recognizing that there is a serious and genuine apprehension on 
the part of many States that nuclear explosions constitute an infringe- 
ment of the freedom of the seas, 

Recognizing that the question of nuclear tests and production is 
still under review by the General Assembly under various resolutions 
on the subject and by the Disarmament Commission, and is at present 
under constant review and discussion by the Governments concerned, 

Decides to refer this matter to the General Assembly for appropriate 
action. 

(2) POLLUTION OF THE HIGH SEAS BY RADIOACTIVE 
MATERIALS 

Resolution adopted on 27 April 1958, on the report of the Second 
Committee, relating to article 25 of the Convention on the High Seas 

The United Nations Conference on the Law of the Sea, 

Recognizing the need for international action in the field of disposal 
of radioactive wastes in the sea, 

Taking into account action which has been proposed by various 
national and international bodies and studies which have been pub- 
lished on the subject, 

Noting that the International Commission for Radiological Protec- 
tion has made recommendations regarding the maximum permissible 
concentration of radioisotopes in the human body and the maximum 
permissible concentration in air and water, 

Recommends that the International Atomic Energy Agency, in 
consultation with existing groups and established organs having ac- 

8 U.N. doc. A/CONF. 13/L. 56. 

228 



229 

knowledged competence in the field of radiological protection, should 
pursue whatever studies and take whatever action is necessary to 
assist States in controlling the discharge or release of radioactive 
materials to the sea, in promulgating standards, and in drawing up 
internationally acceptable regulations to prevent pollution of the sea 
by radioactive materials in amounts which would adversely affect man 
and his marine resources. 

(3) INTERNATIONAL FISHEKY CONSERVATION CON- 
VENTIONS 

Resolution adopted on 25 April 1958, on the report of the Third 
Committee 

The United Nations Conference on the Law of the Sea, 

Taking note of the opinion of the International Technical Confer- 
ence on the Conservation of the Living Resources of the Sea, held in 
Rome in April/May 1955, as expressed in paragraph 43 of its report, 
as to the efficacy of international conservation organizations in further- 
ing the conservation of the living resources of the sea, 

Believing that such organizations are valuable instruments for the 
co-ordination of scientific effort upon the problem of fisheries and for 
the making of agreements upon conservation measures, 

Recommends : 

1. That States concerned should co-operate in establishing the nec- 
essary conservation regime through the medium of such organizations 
covering particular areas of the high seas or species of living marine 
resources and conforming in other respects with the recommendations 
contained in the report of the Rome Conference ; 

2. That these organizations should be used so far as practicable 
for the conduct of the negotiations between States envisaged under 
articles 4, 5, 6 and 7, for the resolution of any disagreements and for 
the implementation of agreed measures of conservation. 

(4) CO-OPERATION IN CONSERVATION MEASURES 

Resolution adopted on 25 April 1958, on the report of the Third 
Committee 
The United Nations Conference on the Law of the Sea, 
Taking note of the opinion of the International Technical Con- 
ference on the Conservation of the Living Resources of the Sea, held 
in Rome in April/May 1955, as reported in paragraphs 43(a), 54 and 
others of its report, that any effective conservation management 
system must have the participation of all States engaged in substantial 
exploitation of the stock or stocks of living marine organisms which 
are the object of the conservation management system or having a 
special interest in the conservation of that stock or stocks. 



230 

Recommends to the coastal States that, in the cases where a stock 
or stocks of fish or other living marine resources inhabit both the fish- 
ing areas under their jurisdiction and areas of the adjacent high seas, 
they should co-operate with such international conservation organiza- 
tions as may be responsible for the development and application of 
conservation measures in the adjacent high seas, in the adoption and 
enforcement, as far as practicable, of the necessary conservation meas- 
ures on fishing areas under their jurisdiction. 

(5) HUMANE KILLING OF MAKINE LIFE 

Resolution adopted on 25 April 1958, on the report of the Third 

Committee 

The United Nations Conference on the Laio of the Sea, 

Requests States to prescribe, by all means available to them, those 

methods for the capture and killing of marine life, especially of whales 

and seals, which will spare them suffering to the greatest extent 

possible. 

(6) SPECIAL SITUATIONS EELATING TO COASTAL 
FISHEEIES 

Resolution adopted on 26 April 1958, on the report of the Third 
Committee 

The United Nations Conference on the Law of the Sea, 

Having considered the situation of countries or territories whose 
people are overwhelmingly dependent upon coastal fisheries for their 
livelihood or economic development, 

Having considered also the situation of countries whose coastal 
population depends primarily on coastal fisheries for the animal 
protein of its diet and whose fishing methods are mainly limited to 
local fishing from small boats, 

Recognizing that such situations call for exceptional measures 
benefiting particular needs, 

Considering that, because of the limited scope and exceptional na- 
ture of those situations, any measures adopted to meet them would 
be complementary to provisions incorporated in a universal system of 
international law, 

Believing that States should collaborate to secure just treatment of 
such situations by regional agreements or by other means of inter- 
national co-operation, 

Recommends : 

1. That where, for the purpose of conservation, it becomes necessary 
to limit the total catch of a stock or stocks of fish in an area of the 
high seas adjacent to the territorial sea of a coastal State, any other 
States fishing in that area should collaborate with the coastal State 



231 

to secure just treatment of such situation, by establishing agreed 
measures which shall recognize any preferential requirements of the 
coastal State resulting from its dependence upon the fishery con- 
cerned while having regard to the interests of the other States; 

2. That appropriate conciliation and arbitral procedures shall be 
established for the settlement of any disagreement. 

(7) REGIME OF HISTOEIC WATERS 

Resolution adopted on 27 April 1958, on the report of the First 
Committee 
The United Nations Conference on the Law of the Sea, 
Considering that the International Law Commission has not pro- 
vided for the regime of historic waters, including historic bays, 
Recognizing the importance of the juridical status of such areas, 
Requests the General Assembly of the United Nations to arrange 
for the study of juridical regime of historic waters, including historic 
bays, and for the communication of the results of such study to all 
States Members of the United Nations. 

(8) CONVENING OF A SECOND UNITED NATIONS CON- 
FERENCE ON THE LAW OF THE SEA 

Resolution adopted by the Conference on 27 April 1958 

The United Nations Conference on the Law of the Sea, 

Considering that, on the basis of the report prepared by the Inter- 
national Law Commission, it has approved agreements and other 
instruments on the regime applicable to fishing and the conservation 
of the living resources of the high seas, the exploration and exploita- 
tion of the natural resources of the continental shelf and other mat- 
ters pertaining to the general regime of the high seas and to the free 
access of land-locked States to the sea, 

Considering that it has not been possible to reach agreement on the 
breadth of the territorial sea and some other matters which were 
raised in connexion with this problem, 

Recognizing that, although agreements have been reached on the 
regime applicable to fishing and the conservation of the living re- 
sources of the high seas, it has not been possible, in those agree- 
ments, to settle certain aspects of a number of inherently complex 
questions, 

Recognizing the desirability of making further efforts, at an ap- 
propriate time, to reach agreement on those questions relating to the 
international law of the sea which have been left unsettled, 

Requests the General Assembly of the United Nations to study, at 
its thirteenth session (1958), the advisability of convening a second 



232 

international conference of plenipotentiaries for further considera- 
tion of the questions left unsettled by the present Conference. 
(9) TRIBUTE TO THE INTERNATIONAL LAW COMMIS- 
SION 

Resolution adopted by the Conference on 27 April 1958 

The United Nations Conference on the Law of the Sea, on the con- 
clusion of its proceedings, 

Resolves: 

To pay a tribute of gratitude, respect and admiration to the Inter- 
national Law Commission for its excellent work in the matter of the 
codification and development of international law, in the form of vari- 
ous drafts and commentaries of great juridical value. 



APPENDIX G 

UNITED NATIONS Distr. 

GENEEAL 

GENEKAL A/CONF. 13/32 

ASSEMBLY 24 January 1958 

ENGLISH 
ORIGINAL: FEENCH 

UNITED NATIONS CONFERENCE ON THE LAW OF THE 

SEA 

Text of the Articles Concerning the Law of the Sea Adopted by the 
International Law Commission at its Eighth Session 



58—01635 

607631—61 16 233 



Articles Concerning the Law of the Sea 

PART I 

TERRITORIAL SEA 

Section I. General 

JURIDICAL STATUS OF THE TERRITORIAL SEA 

Article 1 

1. The sovereignty of a State extends to a belt of sea adjacent to its 
coast, described as the territorial sea. 

2. This sovereignty is exercised subject to the conditions prescribed 
in these articles and by other rules of international law. 

JURIDICAL STATUS OF THE AIR SPACE OVER THE 
TERRITORIAL SEA AND OF ITS BED AND SUBSOIL 

Article 2 

The sovereignty of a coastal State extends also to the air space over 
the territorial sea as well as to its bed and subsoil. 

Section II. Limits of the Territorial Sea 

BREADTH OF THE TERRITORIAL SEA 

Article 3 

1. The Commission recognizes that international practice is not 
uniform as regards the delimitation of the territorial sea. 

2. The Commission considers that international law does not permit 
an extension of the territorial sea beyond twelve miles. 

3. The Commission, without taking any decision as to the breadth 
of the territorial sea up to that limit, notes, on the one hand, that 
many States have fixed a breadth greater than three miles and, on the 
other hand, that many States do not recognize such a breadth when 
that of their own territorial sea is less. 

4. The Commission considers that the breadth of the territorial sea 
should be fixed by an international conference. 



234 



235 

NORMAL BASELINE 

Article 4 

Subject to the provisions of article 5 and to the provisions regard- 
ing bays and islands, the breadth of the territorial sea is measured 
from the low-water line along the coast, as marked on large-scale 
charts officially recognized by the coastal State. 

STRAIGHT BASELINES 

Article 5 

1. Where circumstances necessitate a special regime because the 
coast is deeply indented or cut into or because there are islands in its 
immediate vicinity, the baseline may be independent of the low-water 
mark. In these cases, the method of straight baselines joining ap- 
propriate points may be employed. The drawing of such baselines 
must not depart to any appreciable extent from the general direction 
of the coast, and the sea areas lying within the lines must be suf- 
ficiently closely linked to the land domain to be subject to the regime 
of internal waters. Account may nevertheless be taken, where neces- 
sary, of economic interests peculiar to a region, the reality and im- 
portance of which are clearly evidenced by a long usage. Baselines 
shall not be drawn to and from drying rocks and drying shoals. 

2. The coastal State shall give due publicity to the straight 
baselines drawn by it. 

3. Where the establishment of a straight baseline has the effect of 
enclosing as internal waters areas which previously had been con- 
sidered as part of the territorial sea or of the high seas, a right of 
innocent passage, as defined in article 15, through those waters shall 
be recognized by the coastal State in all those cases where the waters 
have normally been used for international traffic. 

OUTER LIMIT OF THE TERRITORIAL SEA 

Article 6 

The outer limit of the territorial sea is the line every point of 
which is at a distance from the nearest point of the baseline equal 
to the breadth of the territorial sea. 

BAYS 

Article 7 

1. For the purposes of these articles, a bay is a well-marked in- 
dentation whose penetration is in such proportion to the width of 
its mouth as to contain landlocked waters and constitute more than 
a mere curvature of the coast. An indentation shall not, however, 



236 

be regarded as a bay unless its area is as large as, or larger than, that 
of the semicircle drawn on the mouth of that indentation. If a bay 
has more than mouth, this semicircle shall be drawn on a line as long 
as the sum total of the length of the different mouths. Islands within 
a bay shall be included as if they were part of the water area of the 
bay. 

2. The waters within a bay, the coasts of which belong to a single 
State, shall be considered internal waters if the line drawn across 
the mouth does not exceed fifteen miles measured from the low- water 
line. 

3. Where the mouth of a bay exceeds fifteen miles, a closing line 
of such length shall be drawn within the bay. When different lines 
of such length can be drawn that line shall be chosen which encloses 
the maximum water area within the bay. 

4. The foregoing provisions shall not apply to so-called "historic" 
bays, or in any cases where the straight baseline system provided for 
in article 5 is applied. 

POETS 

Article 8 

For the purpose of delimiting the territorial sea, the outermost 
permanent harbour works which form an integral part of the har- 
bour system shall be regarded as forming part of the coast. 

ROADSTEADS 

Article 9 

Roadsteads which are normally used for the loading, unloading 
and anchoring of ships, and which would otherwise be situated wholly 
or partly outside the outer limit of the territorial sea, are included 
in the territorial sea. The coastal State must give due publicity to 
the limits of such roadsteads. 

ISLANDS 

Article 10 

Every island has its own territorial sea. An island is an area 
of land, surrounded by water, which in normal circumstances is 
permanently above high- water mark. 

DRYING ROCKS AND DRYING SHOALS 

Article 11 

Drying rocks and drying shoals which are wholly or partly within 
the territorial sea, as measured from the mainland or an island, may 



237 

be taken as points of departure for measuring the extension of the 
territorial sea, 

DELIMITATION OF THE TEEKITOKIAL SEA IN STKAITS 
AND OFF OTHEE OPPOSITE COASTS 

Article 12 

1. The boundary of the territorial sea between two States, the 
coasts of which are opposite each other at a distance less than the 
extent of the belts of territorial sea adjacent to the two coasts, shall 
be fixed by agreement between those States. Failing such agree- 
ment and unless another boundary line is justified by special cir- 
cumstances, the boundary is the median line every point of which 
is equidistant from the nearest points on the baselines from which 
the breadths of the territorial seas of the two States are measured. 

2. If the distance between the two States exceeds the extent of 
the two belts of territorial sea, the waters lying between the two 
belts shall form part of the high seas. Nevertheless, if, as a conse- 
quence of this delimitation, an area of the sea not more than two miles 
in breadth should be entirely enclosed within the territorial sea, that 
area may, by agreement between the coastal States, be deemed to be 
part of the territorial sea. 

3. The first sentence of the preceding paragraph shall be applicable 
to cases where both coasts belong to one and the same coastal State. 
If, as a consequence of this delimitation, an area of the sea not more 
than two miles in breadth should be entirely enclosed within the 
territorial sea, that area may be declared by the coastal State to form 
part of its territorial sea. 

4. The line of demarcation shall be marked on the officially recog- 
nized large-scale charts. 

DELIMITATION OF THE TEEEITOEIAL SEA AT THE 

MOUTH OF A EIVEE 

Article 13 

1. If a river flows directly into the sea, the territorial sea shall be 
measured from a line drawn inter fauces terrarum across the mouth 
of the river. 

2. If the river flows into an estuary the coasts' of which belong to 
a single State, article 7 shall apply. 

DELIMITATION OF THE TEEEITOEIAL SEA OF TWO 

ADJACENT STATES 

Article 14 

1. The boundary of the territorial sea between two adjacent States 
shall be determined by agreement between them. In the absence of 



238 

such agreement, and unless another boundary line is justified by 
special circumstances, the boundary is drawn by application of the 
principle of equidistance from the nearest points on the baseline from 
which the breadth of the territorial sea of each country is measured. 
2. The boundary line shall be marked on the officially recognized 
large-scale charts. 

Section III. Right of Innocent Passage 
Sub-Section A. General Rules 

MEANING OF THE EIGHT OF INNOCENT PASSAGE 

Article 15 

1. Subject to the provisions of the present rules, ships of all States 
shall enjoy the right of innocent passage through the territorial sea. 

2. Passage means navigation through the territorial sea for the 
purpose either of traversing that sea without entering internal waters, 
or of proceeding to internal waters, or of making for the high sea 
from internal waters. 

3. Passage is innocent so long as a ship does not use the territorial 
sea for committing any acts prejudicial to the security of the coastal 
State or contrary to the present rules, or to other rules of inter- 
national law. 

4. Passage includes stopping and anchoring, but only in so far as 
the same are incidental to ordinary navigation or are rendered neces- 
sary by force majeure or by distress. 

5. Submarines are required to navigate on the surface. 

DUTIES OF THE COASTAL STATE 

Article 16 

1. The coastal State must not hamper innocent passage through the 
territorial sea. It is required to use the means at its disposal to 
ensure respect for innocent passage through the territorial sea and 
must not allow the said sea to be used for acts contrary to the rights 
of other States. 

2. The coastal State is required to give due publicity to any dangers 
to navigation of which it has knowledge. 

RIGHTS OF PROTECTION OF THE COASTAL STATE 

Article IT 

1. The coastal State may take the necessary steps in its territorial 
sea to protect itself against any act prejudicial to its security or to 



239 

such other of its interests as it is authorized to protect under the 
present rules and other rules of international law. 

2. In the case of ships proceeding to internal waters, the coastal 
State shall also have the right to take the necessary steps to prevent 
any breach of the conditions to which the admission of those ships 
to those waters is subject. 

3. The coastal State may suspend temporarily in definite areas of 
its territorial sea the exercise of the right of passage if it should deem 
such suspension essential for the protection of the rights referred to 
in paragraph 1. Should it take such action, it is bound to give due 
publicity to the suspension. 

4. There must be no suspension of the innocent passage of foreign 
ships through straits normally used for international navigation be- 
tween two parts of the high seas. 

DUTIES OF FOREIGN SHIPS DURING THEIR PASSAGE 

Article 18 

Foreign ships exercising the right of passage shall comply with the 
laws and regulations enacted by the coastal State in conformity with 
the present rules and other rules of international law and, in par- 
ticular, with the laws and regulations relating to transport and 
navigation. 

Sub-Section B. Merchant Ships 

CHARGES TO BE LEVIED UPON FOREIGN SHIPS 

Article 19 

1. No charge may be levied upon foreign ships by reason only of 
their passage through the territorial sea. 

2. Charges may only be levied upon a foreign ship passing through 
the territorial sea as payment for specific services rendered to the 
ship. 

ARREST ON BOARD A FOREIGN SHIP 

Article 20 

1. A coastal State may not take any steps on board a foreign ship 
passing through the territorial sea to arrest any person or to conduct 
any investigation by reason of any crime committed on board the 
ship during its passage, save only in the following cases : 

(a) If the consequences of the crime extend beyond the ship; or 

(b) If the crime is of a kind to disturb the peace of the country 
or the good order of the territorial sea ; or 



240 

(c) If the assistance of the local authorities has been requested 
by the captain of the ship or by the consul of the country whose flag 
the ship flies. 

2. The above provisions do not affect the right of the coastal State 
to take any steps authorized by its laws for the purpose of an arrest 
or investigation on board a foreign ship lying in its territorial sea or 
passing through the territorial sea after leaving internal waters. 

3. In considering whether or how an arrest should be made, the local 
authorities shall pay due regard to the interests of navigation. 

AEEEST OF SHIPS FOR THE PURPOSE OF EXER- 
CISING CIVIL JURISDICTION 

Article 21 

1. A coastal State may not arrest or divert a foreign ship passing 
through the territorial sea for the purpose of exercising civil jurisdic- 
tion in relation to a person on board the ship. 

2. A coastal State may not levy execution against or arrest the ship 
for the purpose of any civil proceedings, save only in respect of obliga- 
tions or liabilities incurred by the ship itself in the course or for the 
purpose of its voyage through the waters of the coastal State. 

3. The provisions of the previous paragraph are without prejudice 
to the right of the coastal State, in accordance with its laws, to levy 
execution against or to arrest, for the purpose of any civil proceed- 
ings, a foreign ship lying in the territorial sea or passing through 
the territorial sea after leaving the Internal waters. 

Sob-Section C. Government Ships Other Than Warships 

GOVERNMENT SHIPS OPERATED FOR COMMERCIAL 

PURPOSES 

Article 22 

The rules contained in sub-sections A and B shall also apply 
to Government ships operated for commercial purposes. 

GOVERNMENT SHIPS OPERATED FOR NON-COMMER- 
CIAL PURPOSES 

Article 23 

The rules contained in sub-section A shall apply to government ships 
operated for non-commercial purposes. 



241 
Sub-Section D. Warships 

PASSAGE 

Article 24 

The coastal State may make the passage of warships through the 
territorial sea subject to previous authorization or notification. Nor- 
mally it shall grant innocent passage subject to the observance of the 
provisions of articles 17 and 18. 

NON-OBSERVANCE OF THE REGULATIONS 

Article 25 

If any warship does not comply with the regulations of the coastal 
State concerning passage through the territorial sea and disregards 
any request for compliance which may be brought to its notice, the 
coastal State may require the warship to leave the territorial sea. 

PART II 

HIGH SEAS 

Section I. General Regime 

DEFINITION OF THE HIGH SEAS 

Article 26 

1. The term "high seas" means all parts of the sea that are not 
included in the territorial sea, as contemplated by Part I, or in the 
internal waters of a State. 

2. Waters within the baseline of the territorial sea are considered 
"internal waters." 

FREEDOM OF THE HIGH SEAS 

Article 27 

The high seas being open to all nations, no State may validly 
purport to subject any part of them to its sovereignty. Freedom of 
the high seas comprises, inter alia: 

( 1 ) Freedom of navigation ; 

(2) Freedom of fishing ; 

(3) Freedom to lay submarine cables and pipelines ; 

(4) Freedom to fly over the high seas. 



242 

Sub-Section A. Navigation 

THE EIGHT OF NAVIGATION 

Article 28 

Every State lias the right to sail ships under its flag on the high 
seas. 

NATIONALITY OF SHIPS 

Article 29 

1. Each State shall fix the conditions for the grant of its nation- 
ality to ships, for the registration of ships in its territory, and for 
the right to fly its flag. Ships have the nationality of the State 
whose flag they are entitled to fly. Nevertheless, for purposes of 
recognition of the national character of the ship by other States, 
there must exist a genuine link between the State and the ship. 

2. A merchant ship's right to fly the flag of a State is evidenced 
by documents issued by the authorities of the State of the flag. 

STATUS OF SHIPS 

Article 30 

Ships shall sail under the flag of one State only and, save in excep- 
tional cases expressly provided for in international treaties or in 
these articles, shall be subject to its exclusive jurisdiction on the high 
seas. A ship may not change its flag during a voyage or while in a 
port of call, save in the case of a real transfer of ownership or change 
of registry. 

SHIPS SAILING UNDER TWO FLAGS 
Article 31 

A ship which sails under the flags of two or more States, using 
them according to convenience, may not claim any of the nationalities 
in question with respect to any other State, and may be assimilated 
to a ship without nationality. 

IMMUNITY OF WARSHIPS 

Article 32 

1. Warships on the high seas have complete immunity from the 
jurisdiction of any State other than the flag State. 

2. For the purposes of these articles, the term "warship" means 
a ship belonging to the naval forces of a State and bearing the exter- 



243 

nal marks distinguishing warships of its nationality, under the com- 
mand of an officer duly commissioned by the government and whose 
name appears in the Navy list, and manned by a crew who are under 
regular naval discipline. 

IMMUNITY OF OTHEE GOVEENMENT SHIPS 

Article 33 

For all purposes connected with the exercise of powers on the high 
seas by States other than the flag State, ships owned or operated by 
a State and used only on government service, whether commercial 
or non-commercial, shall be assimilated to and shall have the same 
immunity as warships. 

SAFETY OF NAVIGATION 

Article 34 

1. Every State is required to issue for ships under its jurisdiction 
regulations to ensure safety at sea with regard inter alia to : 

(a) The use of signals, the maintenance of communications and 
the prevention of collisions ; 

(b) The crew which must be adequate to the needs of the ship 
and enjoy reasonable labour conditions; 

(c) The construction, equipment and seaworthiness of the ship. 

2. In issuing such regulations, each State is required to observe in- 
ternationally accepted standards. It shall take the necessary meas- 
ures to secure observance of the regulations. 

PENAL JUEISDICTION IN MATTEES OF COLLISION 

Article 35 

1. In the event of a collision or of any other incident of navigation 
concerning a ship on the high seas involving the penal or disciplinary 
responsibility of the master or of any other person in the service of 
the ship, no penal or disciplinary proceedings may be instituted 
against such persons except before the judicial or administrative 
authorities either of the flag State or of the State of which the ac- 
cused person is a national. 

2. No arrest or detention of the ship, even as a measure of investiga- 
tion, shall be ordered by any authorities other than those of the flag 
State. 



244 

DUTY TO RENDER ASSISTANCE 
Article 36 

Every State shall require the master of a ship sailing under its flag, 
in so far as he can do so without serious danger to the ship, the crew or 
the passengers, 

(a) to render assistance to any person found at sea in danger of be- 
ing lost ; 

(b) to proceed with all speed to the rescue of persons in distress if 
informed of their need of assistance, in so far as such action may rea- 
sonably be expected of him ; 

(c) after a collision, to render assistance to the other ship, her crew 

and her passengers and, where possible, to inform the other ship of 

the name of his own ship, her port of registry and the nearest port at 

which she will call. 

SLAVE TRADE 

Article 37 

Every State shall adopt effective measures to prevent and punish 
the transport of slaves in ships authorized to fly its colours, and to 
prevent the unlawful use of its flag for that purpose. Any slave tak- 
ing refuge on board any ship, whatever its colours, shall ipso facto be 

free. 

PIEACY 

Article 38 

All States shall co-operate to the fullest possible extent in the re- 
pression of piracy on the high seas or in any other place outside the 
jurisdiction of any State. 

Article 39 

Piracy consists in any of the following acts : 

(1) Any illegal acts of violence, detention or any act of depreda- 
tion, committed for private ends by the crew or the passengers of a 
private ship or a private aircraft, and directed : 

(a) On the high seas, against another ship or against persons 
or property on board such a ship ; 

(b) Against a ship, persons or property in a place outside the 
jurisdiction of any State ; 

(2) Any act of voluntary participation in the operation of a ship 
or of an aircraft with knowledge of facts making it a pirate ship or 
aircraft ; 



245 

(3) Any act of incitement or of intentional facilitation of an act 
described in sub-paragraph 1 or sub-paragraph 2 of this article. 

Article 40 

The acts of piracy, as defined in article 39, committed by a gov- 
ernment ship or a government aircraft whose crew had mutinied and 
taken control of the ship or aircraft are assimilated to acts committed 
by a private vessel. 

Article 41 

A ship or aircraft is considered a pirate ship or aircraft if it is 
intended by the persons in dominant control to be used for the pur- 
pose of committing one of the acts referred to in article 39. The same 
applies if the ship or aircraft has been used to commit any such act, 
so long as it remains under the control of the persons guilty of that 
act. 

Article 42 

A ship or aircraft may retain its national character although it has 
become a pirate ship or aircraft. The retention or loss of national 
character is determined by the law of the State from which the na- 
tional character was originally derived. 

Article 43 

On the high seas, or in any other place outside the jurisdiction of 
any State, every State may seize a pirate ship or aircraft, or a ship 
taken by piracy and under the control of pirates, and arrest the per- 
sons and seize the property on board. The courts of the State which 
carried out the seizure may decide upon the penalties to be imposed, 
and may also determine the action to be taken with regard to the 
ships, aircraft or property, subject to the rights of third parties acting 
in good faith. 

Article 44 

Where the seizure of a ship or aircraft on suspicion of piracy has 
been affected without adequate grounds, the State making the seizure 
shall be liable to the State the nationality of which is possessed by 
the ship or aircraft, for any loss or damage caused by the seizure. 

Article 45 

A seizure on account of piracy may only be carried out by warships 
or military aircraft. 



246 

EIGHT OF VISIT 

Article 46 

1. Except where acts of interference derive from powers conferred 
by treaty, a warship which encounters a foreign merchant ship on the 
high seas is not justified in boarding her unless there is reasonable 
ground for suspecting : 

( a ) That the ship is engaged in piracy ; or 

(b) That while in the maritime zones treated as suspect in the 
international conventions for the abolition of the slave trade, the 
ship is engaged in that trade ; or 

(c) That, though flying a foreign flag or refusing to show its 
flag, the ship is, in reality, of the same nationality as the warship. 

2. In the cases provided for in sub-paragraphs (a), (b) and (c) 
above, the warship may proceed to verify the ship's title to fly its flag. 
To this end, it may send a boat under the command of an officer to 
the suspected ship. If suspicion remains after the documents have 
been checked, it may proceed to a further examination on board the 
ship, which must be carried out with all possible consideration. 

3. If the suspicions prove to be unfounded, and provided that the 
ship boarded has not committed any act justifying them, it shall be 
compensated for any loss or damage that may have been sustained. 

EIGHT OF HOT PUESUIT 

Article 47 

1. The hot pursuit of a foreign ship may be undertaken when the 
competent authorities of the coastal State have good reason to believe 
that the ship has violated the laws and regulations of that State. 
Such pursuit must be commenced when the foreign ship is within the 
internal waters or the territorial sea of the pursuing State, and may 
only be continued outside the territorial sea if the pursuit has not been 
interrupted. It is not necessary that, at the time when the foreign 
ship within the territorial sea receives the order to stop, the ship 
giving the order should likewise be within the territorial sea. If the 
foreign ship is within a contiguous zone, as defined in article 66, the 
pursuit may only be undertaken if there has been a violation of the 
rights for the protection of which the zone was established. 

2. The right of hot pursuit ceases as soon as the ship pursued enters 
the territorial sea of its own country or of a third State. 

3. Hot pursuit is not deemed to have begun unless the pursuing ship 
has satisfied itself by bearings, sextant angles or other like means, 
that the ship pursued or one of its boats is within the limits of the 



247 

territorial sea or, as the case may be, within the contiguous zone. The 
pursuit may only be commenced after a visual or auditory signal to 
stop has been given at a distance which enables it to be seen or heard 
by the foreign ship. 

4. The right of hot pursuit may be exercised only by warships or 
military aircraft, or other ships or aircraft on government service 
specially authorized to that effect. 

5. Where hot pursuit is effected by an aircraft : 

(a) The provisions of paragraphs 1 to 3 of the present article 
shall apply mutatis mutandis; 

(b) The aircraft giving the order to stop must itself actively 
pursue the ship until a ship of the coastal State, summoned by the 
aircraft, arrives to take over the pursuit, unless the aircraft is itself 
able to arrest the ship. It, does not suffice to justify an arrest on the 
high seas that the ship was merely sighted by the aircraft as an of- 
fender or suspected offender, if it was not both ordered to stop and 
pursued by the aircraft itself. 

6. The release of a ship arrested within the jurisdiction of a State 
and escorted to a port of that State for the purposes of an inquiry 
before the competent authorities, may not be claimed solely on the 
ground that the ship, in the course of its voyage, was escorted across 
a portion of the high seas, if the circumstances rendered this necessary. 

POLLUTION OF THE HIGH SEAS 

Article 48 

1. Every State shall draw up regulations to prevent pollution of the 
seas by the discharge of oil from ships or pipelines or resulting from 
the exploitation of the seabed and its subsoil, taking account of exist- 
ing treaty provisions on the subject. 

2. Every State shall draw up regulations to prevent pollution of 
the seas from the dumping of radioactive waste. 

3. All States shall co-operate in drawing up regulations with a 
view to the prevention of pollution of the seas or air space above, re- 
sulting from experiments or activities with radioactive materials or 
other harmful agents. 

Sub-Section B. Fishing 
RIGHT TO FISH 

Article 49 

All States have the right for their nationals to engage in fishing 
on the high seas, subject to their treaty obligations and to the pro- 



248 

visions contained in tlie following articles concerning conservation 
of the living resources of the high seas. 

CONSERVATION OF THE LIVING RESOURCES OF THE 

HIGH SEAS 

Article 50 

As employed in the present articles, the expression "conservation 
of the living resources of the high seas" means the aggregate of the 
measures rendering possible the optimum sustainable yield from those 
resources so as to secure a maximum supply of food and other marine 
products. 

Article 51 

A State whose nationals are engaged in fishing in any area of the 
high seas where the nationals of other States are not thus engaged 
shall adopt measures for regulating and controlling fishing activities 
in that area when necessary for the purpose of the conservation of the 
living resources of the high seas. 

Article 52 

1. If the nationals of two or more States are engaged in fishing the 
same stock or stocks of fish or other marine resources in any area of 
the high seas, these States shall, at the request of any of them, enter 
into negotiations with a view to prescribing by agreement the neces- 
sary measures for the conservation of such resources. 

2. If the States concerned do not reach agreement within a reason- 
able period of time, any of the parties may initiate the procedure con- 
templated by article 57. 

Article 53 

1. If, subsequent to the adoption of the measures referred to in 
articles 51 and 52, nationals of other States engage in fishing the same 
stock or stocks of fish or other marine resources in the same area, the 
conservation measures adopted shall be applicable to them. 

2. If these other States do not accept the measures so adopted and 
if no agreement can be reached within a reasonable period of time, 
any of the interested parties may initiate the procedure contemplated 
by article 57. Subject to paragraph 2 of article 58, the measures 
adopted shall remain obligatory pending the arbitral decision. 



249 
Article 54 

1. A coastal State has a special interest in the maintenance of the 
productivity of the living resources in any area of the high seas ad- 
jacent to its territorial sea. 

2. A coastal State is entitled to take part on an equal footing in 
any system of research and regulation in that area, even though its 
nationals do not carry on fishing there. 

3. If the States concerned do not reach agreement within a reason- 
able period of time, any of the parties may initiate the procedure con- 
templated by article 57. 

Article 55 

1. Having regard to the provisions of paragraph 1 of article 54, 
any coastal State may, with a view to the maintenance of the pro- 
ductivity of the living resources of the sea, adopt unilateral measures 
of conservation appropriate to any stock of fish or other marine re- 
sources in any area of the high seas adjacent to its territorial sea, 
provided that negotiations to that effect with the other States con- 
cerned have not led to an agreement within a reasonable period of 
time. 

2. The measures which the coastal State adopts under the previous 
paragraph shall be valid as to other States only if the following 
requirements are fulfilled : 

(a) That scientific evidence shows that there is an urgent need 
for measures of conservation ; 

(b) That the measures adopted are based on appropriate 
scientific findings ; 

(c) That such measures do not discriminate against foreign 
fishermen. 

3. If these measures are not accepted by the other States concerned, 
any of the parties may initiate the procedure contemplated by article 
57. Subject to paragraph 2 of article 58, the measures adopted shall 
remain obligatory pending the arbitral decision. 

Article 56 

1. Any State which, even if its nationals are not engaged in fishing 
in an area of the high seas not adjacent to its coast, has a special in- 
terest in the conservation of the living resources in that area, may 
request the State whose nationals are engaged in fishing there to take 
the necessary measures of conservation. 



607631—61 17 



250 

2. If no agreement is reached within a reasonable period, such 
State may initiate the procedure contemplated by article 57. 

Article 57 

1. Any disagreement arising between States under articles 52, 53, 
54, 55 and 56 shall, at the request of any of the parties, be submitted 
for settlement to an arbitral commission of seven members, unless 
the parties agree to seek a solution by another method of peaceful 
settlement. 

2. Except as provided in paragraph 3, two members of the arbitral 
commission shall be named by the State or States on the one side of 
the dispute, and two members shall be named by the State or States 
contending to the contrary, but only one of the members nominated 
by each side may be a national of a State on that side. The remain- 
ing three members, one of whom shall be designated as chairman, 
shall be named by agreement between the States in dispute. Failing 
agreement they shall, upon the request of any State party, be nomi- 
nated by the Secretary-General of the United Nations after consulta- 
tion with the President of the International Court of Justice and the 
Director-General of the United Nations Food and Agriculture Or- 
ganization, from nationals of countries not parties to the dispute. 
If, within a period of three months from the date of the request for 
arbitration, there shall be a failure by those on either side in the dis- 
pute to name any member, such member or members shall, upon the 
request of any party, be named, after such consultation, by the Sec- 
retary-General of the United Nations. Any vacancy arising after " 
the appointment shall be filled in the same manner as provided for 
the initial selection. 

3. If the parties to the dispute fall into more than two opposing 
groups, the arbitral commission shall, at the request of any of the 
parties, be appointed by the Secretary-General of the United Nations, 
after consultation with the President of the International Court of 
Justice and the Director- General of the United Nations Food and 
Agriculture Organization, from amongst well qualified persons spe- 
cializing in legal, administrative or scientific questions relating to 
fisheries, depending upon the nature of the dispute to be settled. Any 
vacancy arising after the appointment shall be filled in the same 
manner as provided for the initial selection. 

4. Except as herein provided the arbitral commission shall de- 
termine its own procedure. It shall also determine how the costs and 
expenses shall be divided between the parties. 

5. The arbitral commission shall in all cases be constituted within 
three months from the date of the original request and shall render 



251 

its decision within a further period of five months unless it decides, in 
case of necessity, to extend that time limit. 

Article 58 

1. The arbitral commission shall, in the case of measures unilaterally 
adopted by coastal States, apply a criteria listed in paragraph 2 of 
article 55. In other cases it shall apply these criteria according to 
the circumstances of each case. 

2. The arbitral commission may decide that pending its award the 
measures in dispute shall not be applied. 

Article 59 

The decisions of the arbitral commission shall be binding upon the 
States concerned. If the decision is accompanied by any recommen- 
dations, they shall receive the greatest possible consideration. 

FISHERIES CONDUCTED BY MEANS OF EQUIPMENT 
EMBEDDED IN THE FLOOE OF THE SEA. 

Article 60 

The regulation of fisheries conducted by means of equipment em- 
bedded in the floor of the sea in areas of the high seas adjacent to the 
territorial sea of a State, may be undertaken by that State where 
such fisheries have long been maintained and conducted by its na- 
tionals, provided that non-nationals are permitted to participate in 
such activities on an equal footing with nationals. Such regulations 
will not, however, affect the general status of the areas as high seas. 

Sub-Section C. Submarine Cables and Pipelines 

Article 61 

1. All States shall be entitled to lay telegraph, telephone or high- 
voltage power cables and pipelines on the bed of the high seas. 

2. Subject to its right to take reasonable measures for the explora- 
tion of the continental shelf and the exploitation of its natural re- 
sources, the coastal State may not impede the laying or maintenance 
of such cables or pipelines. 

Article 62 

Every State shall take the necessary legislative measures to provide 
that the breaking or injury of a submarine cable beneath the high 
seas done wilfully or through culpable negligence, in such a manner 
as to be liable to interrupt or obstruct telegraphic or telephonic com- 
munications, and similarly the breaking or injury of a submarine 



252 

high- voltage power cable or pipeline, shall be a punishable offence. 
This provision shall not apply to any break or injury caused by per- 
sons who acted merely with the legitimate object of saving their lives 
or their ships, after having taken all necessary precautions to avoid 
such break or injury. 

Article 63 

Every State shall take the necessary legislative measures to provide 
that, if persons subject to its jurisdiction who are the owners of a cable 
or pipeline beneath the high seas, in laying or repairing that cable 
or pipeline, cause a break in or injury to another cable or pipeline, 
they shall bear the cost. 

Article 64 

Every State shall regulate trawling so as to ensure that all the 
fishing gear used shall be so constructed and maintained as to reduce 
to the minimum any danger of fouling submarine cables or pipelines. 

Article 65 

Every State shall take the necessary legislative measures to ensure 
that the owners of ships who can prove that they have sacrificed an 
anchor, a net or any other fishing gear, in order to avoid injuring a 
submarine cable or pipeline shall be indemnified by the owner of 
the cable or pipeline, provided that the owner of the ship has taken 
all reasonable precautionary measures beforehand. 

Section II. Contiguous Zone 

Article 66 

1. In a zone of the high seas contiguous to its territorial sea, the 
coastal State may exercise the control necessary to 

(a) Prevent infringement of its customs, fiscal or sanitary reg- 
ulations within its territory or territorial sea ; 

(b) Punish infringement of the above regulations committed 
within its territory or territorial sea. 

2. The contiguous zone may not extend beyond twelve miles from 
the baseline from which the breadth of the territorial sea is measured. 

Section III. Continental Shelf 

Article 67 

For the purposes of these articles, the term "continental shelf" is 
used as referring to the seabed and subsoil of the submarine areas 



258 

adjacent to the coast but outside the area of the territorial sea, to a 
depth of 200 metres (approximately 100 fathoms) or, beyond that 
limit, to where the depth of the superjacent waters admits of the 
exploitation of the natural resources of the said areas. 

Article 68 

The coastal State exercises over the continental shelf sovereign 
rights for the purpose of exploring and exploiting its natural re- 
sources. 

Article 69 

The rights of the coastal State over the continental shelf do not 
affect the legal status of the superjacent waters as high seas, or that 
of the airspace above those waters. 

Article 70 

Subject to its right to take reasonable measures for the exploration 
of the continental shelf and the exploitation of its natural resources, 
the coastal State may not impede the laying or maintenance of sub- 
marine cables on the continental shelf. 

Article 71 

1. The exploration of the continental shelf and the exploitation of 
its natural resources must not result in any unjustifiable interference 
with navigation, fishing or the conservation of the living resources of 
the sea. 

2. Subject to the provisions of paragraphs 1 and 5 of this article, 
the coastal State is entitled to construct and maintain on the continen- 
tal shelf installations necessary for the exploration and exploitation 
of its natural resources, and to establish safety zones at a reasonable 
distance around such installations and take in those zones measures 
necessary for their protection. 

3. Such installations, though under the jurisdiction of the coastal 
State, do not possess the status of islands. They have no territorial 
sea of their own, and their presence does not affect the delimitation of 
the territorial sea of the coastal State. 

4. Due notice must be given of any such installations constructed, 
and permanent means for giving warning of their presence must be 
maintained. 

5. Neither the installations themselves, nor the said safety zones 
around them may be established in narrow channels or where inter- 



254: 

f erence may be caused in recognized sea lanes essential to international 
navigation. 

Article 72 

1. Where the same continental shelf is adjacent to the territories of 
two or more States whose coasts are opposite to each other, the bound- 
ary of the continental shelf appertaining to such States shall be de- 
termined by agreement between them. In the absence of agreement, 
and unless another boundary line is justified by special circumstances, 
the boundary is the median line, every point of which is equidistant 
from the baselines from which the breadth of the territorial sea of 
each country is measured. 

2. Where the same continental shelf is adjacent to the territories of 
two adjacent States, the boundary of the continental shelf shall be de- 
termined by agreement between them. In the absence of agreement, 
and unless another boundary line is justified by special circumstances, 
the boundary shall be determined by application of the principle of 
equidistance from the baselines from which the breadth of the terri- 
torial sea of each of the two countries is measured. 

Article 73 

Any disputes that may arise between States concerning the inter- 
pretation or application of articles 67-72 shall be submitted to the In- 
ternational Court of Justice at the request of any of the parties, un- 
less they agree on another method of peaceful settlement. 



APPENDIX H 

RESOLUTION 1105 (XI) ADOPTED BY THE GENERAL 

ASSEMBLY ON 21 FEBRUARY 1957 x 

The General Assembly, 

Having received the report of the International Law Commission 
covering the work of its eighth session, which contains draft articles 
and commentaries on the law of the sea, 

Recalling that the General Assembly in resolution 798 (VIII) of 
7 December 1953, having regard to the fact that the problem relating 
to the high seas, territorial waters, contiguous zones, the continental 
shelf and the superjacent waters were closely linked together juridi- 
cally as well as physically, decided not to deal with any aspect of 
those matters until all the problems involved had been studied by 
the International Law Commission and reported upon by it to the 
General Assembly, 

Considering that, by its resolution 899 (IX) of 14 December 1954, 
it requested the International Law Commission to submit its final 
report on these subjects in time for the General Assembly to consider 
them as a whole at its eleventh session, 

Taking into account also paragraph 29 of the report of the Interna- 
tional Law Commission wherein the Commission considers — and the 
comments of Governments have confirmed this view — that the various 
sections of the law of the sea held together, and are so closely inter- 
dependent that it would be extremely difficult to deal with only one 
part and leave the others aside, 

1. Expresses its appreciation to the International Law Commis- 
sion for its valuable work on this complex subject; 

2. Decides, in accordance with the recommendation contained in 
paragraph 28 of the report of the International Law Commission 
covering the work of its eighth session, that an international confer- 
ence of plenipotentiaries should be convoked to examine the law of 
the sea, taking account not only of the legal but also of the technical, 
biological, economic and political aspects of the problem, and to em- 



1 General Assembly Official Records: eleventh session, Supplement No. 11 
(A/3572). 

255 



256 

body the results of its work in one or more international conventions 
or such other instruments as it may deem appropriate; 

3. Recommends that the conference should study the question of 
free access to the sea of land-locked countries, as established by inter- 
national practice or treaties ; 

4. Requests the Secretary- General to convoke the conference early 
in March 1958 ; 

5. Invites all States Members of the United Nations and States 
members of the specialized agencies to participate in the conference 
and to include among their representatives experts competent in the 
fields to be considered ; 

6. Invites the interested specialized agencies and inter-govern- 
mental bodies to send observers to the conference; 

7. Requests the Secretary- General to invite appropriate experts 
to advise and assist the Secretariat in preparing the conference, with 
the following terms of reference : 

(a) To obtain, in the manner which they think most appro- 
priate, from the Governments invited to the conference any further 
provisional comments the Governments may wish to make on the 
Commission's report and related matters, and to present to the confer- 
ence in systematic form any comments made by the Governments, as 
well as the relevant statements made in the Sixth Committee at the 
eleventh and previous sessions of the General Assembly ; 

(b) To present to the conference recommendations concerning 
its method of work and procedures, and other questions of an admin- 
istrative nature; 

(c) To prepare, or arrange for the perparation of, working 
documents of a legal, technical, scientific or economic nature in order 
to facilitate the work of the conference; 

8. Requests the Secretary-General to arrange also for the necessary 
staff and facilities which would be required for the conference, it 
being understood that the technical services of such experts as are 
needed will be utilized; 

9. Refers to the conference the report of the International Law 
Commission as the basis for its consideration of the various problems 
involved in the development and codification of the law of the sea, 
and also the verbatim records of the relevant debates in the General 
Assembly, for consideration by the conference in conjunction with 
the Commission's report; 

10. Requests the Secretary-General to transmit to the conference 
all such records of world-wide or regional international meetings as 
may serve as official background material for its work ; 

11. Calls upon the Governments invited to the conference and 
groups thereof to utilize the time remaining before the opening of 



257 

the conference for exchange of views on the controversial questions 
relative to the law of the sea; 

12. Expresses the hope that the conference will be fully attended. 



UNITED NATIONS 



GENERAL 
ASSEMBLY 



APPENDIX I 

Distr. 
GENERAL 

A/CONF.13/33 
4 February 1958 

ORIGINAL: ENGLISH/FRENCH 



UNITED NATIONS CONFERENCE ON THE LAW OF THE SEA 

Initial List of Documents for the United Nations Conference on the 

Law of the Sea 



58-02469 
258 



259 

INITIAL LIST OF DOCUMENTS FOR THE UNITED NATIONS 
CONFERENCE ON THE LAW OF THE SEA* 





Prep. 




Prepared or 


Symbol 


Doc. 
No. 


Title 


Submitted by 


A/CONF. 13/1 


1 


Memorandum concerning 
historic bays. 


The Secretariat. 


A/CONF. 13/2 


2 


Scientific Considerations 


United Nations Edu- 






Relating to the Con- 


cational, Scientific 






tinental Shelf. 


and Cultural 
Organization 

(UNESCO) 


A/CONF. 13/2/ Add. 




Addendum to Scientific 


UNESCO. 


1. 




Considerations etc. 




A/CONF. 13/3 


3 


The Economic and Sci- 
entific Basis of the 
Principle of Abstention 


Richard van Cleve. 


A/CONF. 13/4 


4 


The law of the air and the 
articles concerning the 
law of the sea adopted 
by the International 
Law Commission at its 
eighth session. 


E Pepin. 


A/CONF. 13/5 


5 


Comments by Govern- 
ments on the Articles 
concerning the law of 
the sea prepared by 
the International Law 
Commission at its 
eighth session. 


The Secretariat. 


** A/CONF. 13/5/ 




Corrigendum to Com- 


The Secretariat. 


Corr. 1. 




ments by Govern- 
ments etc. 




A/CONF. 13/5/ Add. 




Addendum to Comments 


The Secretariat. 


1. 




by Governments etc. 




** A/CONF. 13/5/ 




Corrigendum to Adden- 


The Secretariat. 


Add. 1/ Corr. 1. 




dum to Comments by 
Governments etc. 




A/CONF. 13/5/ Add. 




Addendum to Comments 


The Secretariat. 


2. 




by Governments etc. 




A/CONF. 13/6 


6 


A brief geographical and 


Commander R. H. 






and hydrographical 


Kennedy, O.B.E., 






study of straits which 


R.N. (Retd.) 






constitute routes for 








international traffic. 





* Those documents which are regarded as preparatory documents proper are given a Preparatory Docu- 
ment number in the second column; the documents of the Conference intended for use in the Conference itself 
carry no such number. 

** Relates to English document only. 



260 

INITIAL LIST OF DOCUMENTS FOR THE UNITED NATIONS 

CONFERENCE ON THE LAW OF THE SEA— Continued 





Prep. 




Prepared or 


Symbol 


Doc. 
No. 


Title 


Submitted by 


A/CONF. 13/6/ Add. 




Addendum to a brief 


Commander R. H. 


1. 




geographical and 


Kennedy, O.B.E., 






hydrographical study, 


R.N. (Retd.) 






etc. 




A/CONF. 13/7 


7 


The Relation between 
the Articles Concern- 
ing the Law of the 
Sea Adopted by the 
International Law 
Commission and 
International Agree- 
ments dealing with 
the Suppression of 
the Slave Trade. 


The Secretariat. 


A/CONF. 13/8 


8 


Memorandum on pollu- 
tion of the sea by oil. 


The Secretariat. 


A/CONF. 13/9 




Provisional Agenda _ 


The Secretariat. 


A/CONF. 13/10 




Provisional Rules of 
Procedure. 


The Secretariat. 


A/CONF. 13/11 




Memorandum Concern- 
ing the Method of 


The Secretariat. 












Work and Procedures 








of the Conference. 




A/CONF. 13/12 


9 


Technical Particulars 


Food and Agriculture 






Concerning the Meth- 


Organization of the 






ods of Fishing Con- 


United Nations 






ducted by Means of 


(FAO). 






Equipment Embedded 








in the Floor of the Sea. 




A/CONF. 13/13 


10 


Examination of Living 
Resources Associated 
with the Sea Bed of 
the Continental Shelf 


FAO. 






with Regard to the 
Nature and Degree of 
their Physical and 
Biological Association 
with Such Sea Bed. 




A/CONF. 13/14 


11 


Guide to Instruments 
Affecting the Legal 
Status of Straits. 


The Secretariat. 



261 



INITIAL LIST OF DOCUMENTS FOR THE UNITED NATIONS 

CONFERENCE ON THE LAW OF THE SEA— Continued 





Prep. 




Prepared or 


Symbol 


Doc. 
No. 


Title 


Submitted by 


A/CONF. 13/15 


12 


A Brief Geographical 


Commander R. II . 






and Hydro graphical 


Kennedy, O.B.E., 






Study of Bays and 


R.N. (Retd.). 






Estuaries, the Coasts 








of which Belong to 








Different States. 




A/CONF. 13/16 


13 


The Economic Impor- 
tance of the Sea 
Fisheries in Different 
Countries. 


FAO. 


A/CONF. 13/17___ _ 


14 


Bibliographical Guide to 
the Law of the Sea. 


The Secretariat. 


A/CONF. 13/18 


15 


Certain legal aspects 
concerning the delimi- 
tation of the territorial 
waters of archipelagos. 


Jens Evensen. 


A/CONF. 13/19 .__ _ 




Verbatim record of the 


The Secretariat. 






debate in the Sixth 








Committee of the Gen- 








eral Assembly, at its 








eleventh session, relat- 








ing to agenda item 








53(a). 




A/CONF. 13/20 




Report of the Secretary- 


The Secretariat. 






General on the Prep- 








aration of the Con- 








ference. 




*** A/CONF. 13/21 __ 


16 


Reference guide to reso- 
lutions and records 
concerning the law of 
the sea adopted by 
world-wide or regional 
international confer- 
ences and meetings. 


The Secretariat. 


A/CONF. 13/22 


17 


Guide to decisions of 
international tribunals 
relating to the law of 
the sea. 


The Secretariat. 


** A/CONF. 13/22/ 




Corrigendum to Guide 


The Secretariat. 


Corr. 1. 




to decisions etc. 





* ** Reference should also be made to the document submitted to the conference in 
English and Spanish by the Organization of American States entitled "Background Material 
on the Activities in the Organization of American States relating to the Law of the Sea" 
( "Antecedentes Informativos sobre la Labor Desarrollada por la Organizacion de los 
Estados Americanos en relacion con el Derecho del Mar"). 

** Relates to English document only. 



262 

INITIAL LIST OF DOCUMENTS FOR THE UNITED NATIONS 
CONFERENCE ON THE LAW OF THE SEA— Continued 





Prep. 




Prepared or 


Symbol 


Doc. 
No. 


Title 


Submitted by 


A/CONF. 13/23 


18 


List in chronological 
order of international 
agreements relating to 
fisheries and other 
questions affecting the 
utilization and conser- 
vation of the resources 
of the sea. 


The Secretariat. 


A/CONF. 13/24 


19 


Information submitted 
by Governments re- 
garding laws, decrees 
and regulations for the 
prevention of pollution 
of the Seas. 


The Secretariat. 


A/CONF. 13/25 


20 


Recent Developments in 
the Technology of Ex- 
ploiting the Mineral 
Resources of the Con- 
tinental Shelf. 


Dr. M. W. Mouton. 


A/CONF. 13/26 


21 


The Breadth of the Safe- 
ty Zone for Installations 
Necessary for the Ex- 
ploration and Exploi- 
tation of the Natural 
Resources of the Con- 
tinental Shelf. 


Dr. M. W. Mouton. 


A/CONF. 13/27 


22 


United Nations Legisla- 
tive Series. Supple- 
ment to Laws and 
Regulations on the 
Regime of the High 
Seas, Vols. I and II; 
and Laws Concerning 
the Nationality of 
Ships. 


The Secretariat. 


A/CONF. 13/28 




Resolutions by and Com- 


UNESCO. 






munication from the 








International Council 








of Scientific Unions 








concerning Part II, 








Section III of the Arti- 








cles concerning the 








Law of the Sea (Con- 








tinental Shelf). 





263 

INITIAL LIST OF DOCUMENTS FOR THE UNITED NATIONS 
CONFERENCE ON THE LAW OF THE SEA— Continued 





Prep. 




Prepared or 


Symbol 


Doc. 
No. 


Title 


Submitted by 


A/CONF. 13/29 


23 


Memorandum concerning 
the question of Free 
Access to the Sea of 
Land-Locked 
Countries. 


The Secretariat. 


A/CONF. 13/30 


24 


Table of References to 
Comments by Govern- 
ments on the Articles 
concerning the law of 
the sea adopted by the 
International Law 
Commission at its 
successive sessions and 
to the relevant state- 
ments in the Sixth 
Committee at the 
eleventh and previous 
sessions of the General 
Assembly. 


The Secretariat. 


*A/CONF. 13/30/ 




Corrigendum to Table of 


The Secretariat. 


Corr. 1. 




References etc. 




A/CONF. 13/31 




Comments on the articles 
concerning the law of 


International Civil 






Aviation Organi- 






the sea adopted by the 


zation (ICAO). 






International Law Com- 








mission at its eighth 








session. 




A/CONF. 13/32 




Text of the Articles Con- 
cerning the Law of 


The Secretariat. 












the Sea Adopted by 








the International Law 








Commission at its 








Eighth Session. 




****A/CONF. 13/33 




Initial List of Documents 
for the United Nations 


The Secretariat. 












Conference on the Law 








of the Sea. 





•Relates to English document only. 
****This is the present document. 



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267 

SIGNATURES TO INSTRUMENTS ADOPTED AT THE UNITED 
NATIONS CONFERENCE ON THE LAW OF THE SEA HELD 
AT GENEVA FROM 24 FEBRUARY TO 27 APRIL 1958 

Declarations and Reservations Made at the Time of Signature 

Convention on the Territorial Sea and the Contiguous Zone 

BULGARIA (reservations) : To article 20: "The Government of the 
People's Republic of Bulgaria considers that government ships in 
foreign waters have immunity and that the measures set forth in 
this article may therefore apply to such ships only with the consent 
of the flag State." To article 23 (Sub-Section D. Rule Appli- 
cable to Warships) : "The Government of the People's Republic of 
Bulgaria considers that the coastal State has the right to regulate 
the conditions of the passage of foreign warships through its ter- 
ritorial sea." * 

BYELORUSSIAN S.S.R. (reservations) : ... To article 20— "The 
Government of the Byelorussian Soviet Socialist Republic considers 
that government ships in foreign territorial waters have immunity 
and that the measures mentioned in this article may therefore be 
applied to them only with the consent of the flag State." To 
article 23 (Sub-Section D. Rules applicable to warships) — "The 
Government of the Byelorussian Soviet Socialist Republic con- 
siders that the coastal State has the right to establish procedures 
for the authorization of the passage of foreign warships through 
its territorial waters." * 

COLOMBIA (declaration) : . . . under Article 98 of the Colombian 
Constitution, authorization by the Senate is required for the pas- 
sage of foreign troops through Colombian territory and that, by 
analogy, such authorization is accordingly also required for the 
passage of foreign warships through Colombian territorial waters. 

CZECHOSLOVAKIA (reservations) : To articles U cmd 23: "In 
view of the fact that the Conference had not adopted a special 
article concerning the passage of warships through the territorial 
waters of foreign States, the Government of the Czechoslovak Re- 
public deems it necessary to stress that articles 14 and 23 cannot 
in any sense be interpreted as establishing a right of innocent 
passage for warships through the territorial waters." To article 
21: "The Government of the Czechoslovak Republic holds that 
under international law in force all Government ships without 
distinction enjoy immunity and therefore does not agree with the 
application of articles 19 and 20 of the Convention to Government 
ships operated for commercial purposes." 

* Translation by the Secretariat. 



268 

HUNGARY (reservations) : . . . Articles H and 23. The Govern- 
ment of the Hungarian People's Republic is of the opinion that the 
coastal State is entitled to make the passage of warships through 
its territorial waters subject to previous authorization. Article 21. 
The Government of the Hungarian People's Republic is of the 
opinion that the rules contained in Sub-Section B of Section III 
of Part I of the Convention are generally inapplicable to Govern- 
ment ships operated for commerical purposes so far as they en- 
croach on the immunities enjoyed under international law 
by all Government ships, whether commercial or noncommercial, 
on foreign territorial waters. Consequently, the provisions of Sub- 
Section B restricting the immunities of Government ships operated 
for commercial purposes are applicable only upon consent of the 
State whose flag the ship flies. 

IRAN (reservations) : Article H: The Iranian Government main- 
tains the objection, on the ground of excess of competence expressed 
by its delegation at the twelfth plenary meeting of the Conference 
on the Law of the Sea on 25 April 1958, to the Articles recom- 
mended by the Fifth Committee of the Conference and incorporated 
in part in article 14 of this Convention. The Iranian Government 
accordingly reserves all rights regarding the contents of this article 
in so far as it relates to countries having no sea coast. 

ROMANIA (reservations) : ... To article 20: The Government of 
the Romanian People's Republic considers that government ships 
have immunity in foreign territorial waters and that the measures 
envisaged in this article may not be applied to such ships except 
with the consent of the flag State. To article 23 : The Government 
of the Romanian People's Republic considers that the coastal State 
has the right to provide that the passage of foreign warships 
through its territorial waters shall be subject to previous approval.* 

TUNISIA (reservation) : . . . "The Government of the Tunisian 
Republic does not consider itself bound by the provisions of article 
16, paragraph 4, of this Convention."* 

UKRAINIAN S.S.R. (reservations) : ... To article 20— "The Gov- 
ernment of the Ukrainian Soviet Socialist Republic considers that 
government ships in foreign territorial waters have immunity and 
that the measures mentioned in this article may therefore be applied 
to them only with the consent of the flag State." To article 23 
(Sub-Section D. Rules applicable to warships) — "The Government 
of the Ukrainian Soviet Socialist Republic considers that a coastal 
State has the right to establish procedures for the authorization of 
the passage of foreign warships through its territorial waters."* 

U.S.S.R. (reservations) : ... To article 20 — The Government of the 
Union of Soviet Socialist Republics considers that government 

""Translation by the Secretariat. 



269 

ships in foreign territorial waters have immunity and that the 
measures mentioned in this article may therefore be applied to 
them only with the consent of the flag State." To article 23 (Sub- 
Section D. Eules applicable to warships) — "The Government of 
the Union of Soviet Socialist Republics considers that a coastal State 
has the right to establish procedures for the authorization of the 
passage of foreign warships through its territorial waters."* 
VENEZUELA (reservation) : . . . declares with reference to article 
12 that there are special circumstances to be taken into consideration 
in the following areas: the Gulf of Paria and zones adjacent 
thereto ; the area between the coast of Venezuela and the island of 
Aruba ; and the Gulf of Venezuela.* 

Convention on the High Seas 

BULGARIA (reservation) : To article 9: "The Government of the 
People's Republic of Bulgaria considers that the principle of inter- 
national law according to which ships have complete immunity 
from the jurisdiction of any State other than the flag State relates 
without any restrictions to all government ships." 
(declaration) : "The Government of the People's Republic of Bul- 
garia considers that the definition of piracy given in the Conven- 
tion does not cover certain acts which should be regarded as piracy 
under contemporary international law and does not serve to secure 
freedom of navigation along international sea routes."* 

BYELORUSSIAN S.S.R. (reservation) : ... To article 9: "The 
Government of the Byelorussian Soviet Socialist Republic considers 
that the principle of international law according to which a ship on 
the high seas is not subject to any jurisdiction except that of the 
flag State applies without restriction to all government ships." 
(declaration) : "The Government of the Byelorussian Soviet 
Socialist Republic considers that the definition of piracy given in 
the Convention does not cover certain acts which under contem- 
porary international law should be considered as acts of piracy 
and does not serve to ensure freedom of navigation on international 
sea routes."* 

CZECHOSLOVAKIA (reservation) : To article 9: "The Govern- 
ment of the Czechoslovak Republic holds that under international 
law in force Government ships operated for commercial purposes 
also enjoy on the high seas complete immunity from the jurisdiction 
of any State other than the flag State." 

(declaration) : "The Government of the Czechoslovak Republic 
maintains that the notion of piracy as defined in the Convention is 
neither in accordance with the present international law nor with 

*Translation by the Secretariat. 



270 



the interest of safeguarding the freedom of navigation on the high 



seas." 



HUNGARY (reservation) : . . . Article 9: "The Government of the 
Hungarian People's Kepublic is of the opinion that, according to the 
general rules of international law, ships owned or operated by a 
State and used on Government service, whether commercial or non- 
commercial, enjoy on the high seas the same immunity as warships, 
(declaration) : . . . The Government of the Hungarian People's 
Republic declares that the definition of piracy as given in the Con- 
vention is not consistent with present international law and does 
not serve the general interests of the freedom of navigation on the 
high seas. 

IRAN (reservations) : . . . Article 2: With respect to the words "no 
State may validly purport to subject any part of them to its sover- 
eignty." it shall be understood that this prohibition does not apply 
to the continental shelf, which is governed by article 2 of the Con- 
vention on the Continental Shelf; Articles 2, 3 and 4: The Iranian 
Government maintains the objection on the ground of excess of 
competence, expressed by its delegation at the twelfth plenary meet- 
ing of the Conference on the Law of the Sea on 24 April 1958, to the 
articles recommended by the Fifth Committee of the Conference 
and incorporated in the aforementioned articles of the Convention 
on the High Seas. The Iranian Government accordingly reserves 
all rights regarding the contents of these articles in so far as they 
relate to countries having no sea coast; Article 2(3) — Article 26, 
paragraphs 1 and 2: Application of the provisions of these articles 
relating to the laying of submarine cables and pipelines shall be 
subject to the authorization of the coastal State, in so far as the 
continental shelf is concerned. 

POLAND (reservation) : The Government of the Polish People's Re- 
public considers that the rule expressed in article 9 applies to all 
ships owned or operated by a State. 

(declaration) : The Government of the Polish People's Republic 
considers that the definition of piracy as contained in the Conven- 
tion does not fully correspond with the present state of interna- 
tional law in this respect. 

ROMANIA (reservation) : ... To article 9: The Government of the 
Romanian People's Republic considers that the principle of inter- 
national law according to which a ship on the high seas is not sub- 
ject to any jurisdiction except that of the flag State applies to all 
government ships regardless of the purpose for which they are used, 
(declaration) : The Government of the People's Republic of Ro- 
mania considers that the definition of piracy as given in article 15 
of the Convention on the High Seas does not cover certain acts 



271 

which under contemporary international law should be considered 
as acts of piracy.* 

UKRAINIAN S.S.R. (reservation) : . . . To article 9: "The Govern- 
ment of the Ukrainian Soviet Socialist Republic considers that the 
principle of international law according to which a ship on the high 
seas is not subject to any jurisdiction except that of the flag State 
applies without restriction to all government ships." 
(declaration) : . . . "The Government of the Ukrainian Soviet So- 
cialist Republic considers that the definition of piracy given in Con- 
vention does not cover certain acts which under contemporary 
international law should be considered as acts of piracy and does 
not serve to ensure freedom of navigation on international sea 
routes." * 

U.8.S.R. (reservation) : . . . Article 9: "The Government of the 
Union of Soviet Social Republics considers that the principle of 
international law according to which a ship on the high seas is not 
subject to any jurisdiction except that of the flag State applies with- 
out restriction to all government ships." 

(declaration) : . . . "The Government of the Union of Soviet So- 
cialist Republics considers that the definition of piracy given in the 
Convention does not cover certain acts which under contemporary 
international law should be considered as acts of piracy and does 
not serve to ensure freedom of navigation on international sea 
routes." * 

Convention on the Continental Shelf 

GERMANY {FEDERAL REPUBLIC) (declaration) : . . . "de- 
clares with reference to article 5, paragraph 1, of the Convention 
on the Continental Shelf that in the opinion of the Federal Republic 
of Germany article 5, paragraph 1, guarantees the exercise of fishing 
rights (Fischerei) in the waters above the continental shelf in the 
manner hitherto generally in practice." 

IRAN (reservations): . . . Article 4'- with respect to the phrase "the 
Coastal State may not impede the laying or maintenance of subma- 
rine cables or pipe-lines on the continental shelf," the Iranian Gov- 
ernment reserves its right to allow or not to allow the laying or 
maintenance of submarine cables or pipe-lines on its continental 
shelf ; Article 6 : with respect to the phrase "and unless another 
boundary line is justified by special circumstances" included in par- 
agraphs 1 and 2 of this article, the Iranian Government accepts 
this phrase on the understanding that one method of determining 
the boundary line in special circumstances would be that of meas- 
urement from the high water mark. 

♦Translation by the Secretariat. 



272 

VENEZUELA (reservation) : . . . declares with reference to article 
6 that there are special circumstances to be taken into consideration 
in the following areas : the Gulf of Paria, in so far as the boundary 
is not determined by existing agreements, and in zones adjacent 
thereto ; the area between the coast of Venezuela and the island of 
Aruba ; and the Gulf of Venezuela. 

Optional Protocol of Big nature concerning compulsory settlement of 
disputes 

COLOMBIA (reservation) : In signing the Optional Protocol, the 
delegation of Colombia reserves the obligations of Colombia arising 
out of conventions concerning the peaceful settlement of disputes 
which Colombia has ratified and out of any previous conventions 
concerning the same subject which Colombia may ratify. 



APPENDIX K 

EXTENT OF JURISDICTION CLAIMED OVER THE TER- 
RITORIAL SEA, THE CONTIGUOUS ZONE AND THE 
CONTINENTAL SHELF: SYNOPTICAL TABLE* 

1. NOTE BY THE SECRETARIAT 

At the 14th Meeting of the First Committee on 13 March 1958 the 
following proposal of Mexico (A/CONF. 13/C. 1/L.l/Rev. 1) was 
adopted by 39 votes in favour, none against, with 26 abstentions : 

"The First Committee 
"Requests the Secretariat to : 

1. Draw up, in consultation with the Delegations, a sum- 
mary table of the provisions of the laws and regulations in 
force in the States represented at the Conference with regard 
to the breadth and juridical status of the zones of the sea con- 
tiguous to their coasts, as well as of the claims on the same 
matter which the Governments of such States may have made 
officially prior to the opening date of the Conference ; 

"2. Use as sources for the aforesaid table the relevant docu- 
ments and publications of the United Nations, and also others 
which may be provided by the Delegations ; and 

"3. Submit the result of its work to the Committee within a 
period not exceeding ten days." 
In accordance with this request the Secretariat prepared a draft 
synoptical table (A/CONF. 13/C. 1/L. 11) on the basis of the table 
contained in the Second Report on the Regime of the Territorial Sea 1 
by Professor J. P. A. Francois, but revised and supplemented in the 
light of additional information contained in the volume on the Laws 
and Regulations on the Regime of the Territorial Sea 2 and the 
Supplement to Laws and Regulations on the Regime of the High 
Seas, Vol. I. 3 This draft synoptical table was then submitted to the 



*U.N. Doc. A/CONF. 13/C. 1/L. 11/Rev. 1 (as amended by Corr. 1 and 2), 
3 April 1958. 

1 A/CN.4/61, 19 February 1953, at pp. 11-17. 

2 UN Legislative Series (ST/LBG/SER. B/6), December 1956. 

3 A/CONF. 13/27, 9 January 1958. 

273 



274 

Delegations to the Conference with a note which emphasized its 
tentative character and which stated that it did not purport to be 
exhaustive or to afford a completely accurate statement of the posi- 
tions of the States listed in the table. In the same note which prefaced 
the draft synoptical table, Delegations were asked to submit to the 
Secretariat by Thursday, 27 March, any information which would 
seek to amend or supplement the draft table. Such information as has 
been received by the Secretariat has been included in the present table 
and the fact is recorded in the table by the use of an asterisk against 
the name of the State concerned. 

Some comment upon the use of the table appears necessary. Where 
a figure in miles or meters is given, followed by a year in brackets 
and then a page reference, the year is that of the law, regulation or 
decree upon which the information is based, and the page reference 
is to the volume on the Laws and Regulations on the Regime of the 
Territorial Sea. Where the page reference is preceded by the 
abbreviation "Suppl.," this refers to the Supplement to Laws and 
Regulations on the Regime of the High Seas, vol. 1. Where no page 
reference is given, this means that the figures are based either upon 
the table in the Second Report on the Regime of the Territorial Sea 
or upon information submitted by delegations, but that no text is 
available in United Nations publications. 



275 



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APPENDIX L 

TWELVE-STATE TREATY GUARANTEEING NONMILI- 
TARIZATION OF ANTARCTICA AND FREEDOM OF 

SCIENTIFIC INVESTIGATION 

(U.S. Dept. of State Bulletin, Vol. XLI, No. 1069, Dec. 21, 1959.) 

DEPARTMENT ANNOUNCEMENT 
Press Release 827 Dated December 1 

The United States and 11 other nations signed the Antarctic treaty 
at Washington on December 1. The treaty, which was negotiated 
during the past 6 weeks, is based upon the principles that Antarctica 
will be used for peaceful purposes only and that the international 
scientific cooperation which characterized the 1957-58 International 
Geophysical Year should continue. 

The conference called to negotiate the treaty was convened at the 
initiative of the U.S. Government. On May 3, 1958, President Eisen- 
hower announced that invitations had been extended to the Govern- 
ments of the 11 nations which had carried on scientific research pro- 
grams in Antarctica during the International Geophysical Year to 
participate in a conference with a view to writing a treaty "dedicated 
to the principle that the vast uninhabited wastes of Antarctica shall 
be used only for peaceful purposes." 1 

The following nations were invited : Argentina, Australia, Belgium, 
Chile, France, Japan, New Zealand, Norway, the Union of South 
Africa, the Union of Soviet Socialist Republics, and the United 
Kingdom. 

At the treaty-signing ceremony, Herman Phleger, the U.S. repre- 
sentative, and Paul C. Daniels, alternate U.S. representative, signed 
for the United States. 

The treaty will not go into effect until it has been ratified by the 
12 Governments. 2 As regards the United States, this ratification 

x For a statement by the President and text of the U.S. note addressed to the 
Foreign Ministers of the 11 countries, see Bulletin of June 2, 1958, p. 910. 

2 As of 12 May 1961, ratifications had been deposited by 9 states : United 
States of America, Belgium, France, Japan, New Zealand, Norway, Union of 
South Africa, Union of Soviet Socialist Republics, United Kingdom of Great 
Britain and Northern Ireland. 

288 



289 

would require the advice and consent of the Senate in accordance with 
constitutional processes. The instrument of ratification is issued by 
the President after a resolution of approval is agreed to by a two- 
thirds vote of the Senate. 

The treaty consists of a preamble and 14 articles. The treaty pro- 
vides that an area of the world as large as the United States and 
Europe together will be used for peaceful purposes only. An effective 
and unprecedented system of inspection on the Antarctic Continent 
is envisaged. Cooperative scientific research will be continued in the 
Antarctic region subject to the provisions of the treaty. Until a 
general international agreement on nuclear explosions is reached, 
such explosions will be prohibited in Antarctica. 

The treaty is of indefinite duration, but after 30 years any party 
may call a conference for review and amendment. The treaty pro- 
vides that all territorial and sovereignty claims and the position of 
all the Governments regarding their recognition or nonrecognition 
of such claims shall remain in status quo for the period of the treaty. 
The treaty is open to accession by other U.N. members and by such 
other states as may be agreed upon unanimously. 

In order to further the purposes and the objectives of the treaty 
a consultative committee will be established and will meet within 2 
months of the entry into force of the treaty and at suitable intervals 
thereafter to recommend measures to the participating parties. The 
first meeting will be at Canberra, Australia. In the meantime the 
conference recommended that representatives of the Governments 
meet at Washington at convenient times to discuss such arrangements 
as they might deem desirable. 

The Conference on Antarctica convened at Washington October 15, 
1959. At the first plenary session held that day, Herman Phleger, 
the U.S. representative, was named the chairman of the conference, 
and Henry E. Allen, the Secretary General. Paul G. Daniels and 
George H. Owen were alternate U.S. representatives. 

U.S. interest in Antarctica dates from the early part of the 19th cen- 
tury. One of the earliest achievements was the 1838-42 expedition of 
Lt. Charles Wilkes, which made sightings extending for 1,500 miles, 
thus proving the existence of the Antarctic Continent. 

The period from 1928 to the present has been one of great activity. 
The names of Rear Adm. Richard E. Byrd, Lincoln Ellsworth, Capt. 
Finn Ronne, and Rear Adm. R. H. Cruzen became intimately linked 
to Antarctica during this period. The U.S. Navy in 1946-47 organ- 
ized the largest U.S. expedition to Antarctica. During the Inter- 



290 

national Geophysical Year the United States established seven stations 
in Antarctica under the leadership of Rear Adm. George Duf ek. At 
the present time four stations are being maintained, including one at 
the South Pole. 

Scientific research in the Antarctic, coordinated and planned by the 
National Science Foundation, is made possible through the logistic 
support of the Navy Department, with its long experience in polar 
operations. The U.S. Naval Support Force is commanded by Rear 
Adm. David N. Tyree. 

STATEMENT BY PRESIDENT EISENHOWER 3 

I am gratified that the Antarctic treaty is being signed today in 
Washington by the representatives of 12 nations. This treaty is the 
result of the arduous and painstaking efforts of many people who for 
2 years have worked to achieve this agreement of great importance to 
the world. 

The Conference on Antarctica was convened October 15, 1959, as a 
result of a United States note of invitation, dated May 2, 1958, to those 
nations which had participated in scientific research in Antarctica 
during the 1957-58 International Geophysical Year. 

The spirit of cooperation and mutual understanding which the 
12 nations and their delegations exhibited in drafting a treaty of this 
importance should be an inspiring example of what can be accom- 
plished by international cooperation in the field of science and in the 
pursuit of peace. 

This treaty guarantees that a large area of the world will be used 
only for peaceful purposes, assured by a system of inspection. Ant- 
arctica will constitute a laboratory for cooperative scientific research 
in accordance with treaty provisions. The legal status quo there will 
be maintained for the duration of the treaty. Nuclear explosions are 
prohibited pending general international agreement on the subject. 

The Antarctic treaty and the guarantees it embodies constitute a 
significant advance toward the goal of a peaceful world with justice. 

STATEMENT BY SECRETARY HERTER 4 

The Governments of the United States of America, Argentina, and 
Chile, on the occasion of the signing of the Antarctic treaty, declare 
that the Antarctic treaty does not affect their obligations under the 



3 Read to the representatives who signed the Antarctic treaty by Secretary 
Herter on Dec. 1 (press release 829). 

4 Released on Dec. 1 (press release 831) . 



291 

Inter- American Treaty of Eeciprocal Assistance, signed at Rio de 
Janeiro, Brazil, in 194T. 5 

TEXT OF FINAL ACT 

The Governments of Argentina, Australia, Belgium, Chile, the 
French Republic, Japan, New Zealand, Norway, the Union of South 
Africa, the Union of Soviet Socialist Republics, the United Kingdom 
of Great Britain and Northern Ireland, and the United States of 
America, 

Having accepted the invitation extended to them on May 2, 1958, 
by the Government of the United States of America to participate in a 
Conference on Antarctica to be attended by representatives of the 
twelve nations which cooperate in the Antarctic Program of 
the International Geophysical Year, appointed their respective 
representatives. 

The Conference met at Washington on October 15, 1959. It had be- 
fore it as a basis for discussion working papers considered in the 
course of informal preparatory talks among representatives of the 
twelve countries who had met in Washington following the aforesaid 
invitation of the Government of the United States of America. 

At the opening Plenary Session of the Conference the Honorable 
Herman Phleger, Head of the United States Delegation, was elected 
Chairman of the Conference. Mr. Henry E. Allen was appointed 
Secretary General of the Conference and Rapporteur. 

The Conference established two Committees under rotating chair- 
manship to deal with the items on the agenda of the Conference. Fol- 
lowing initial consideration of such items, these Committees were 
reconstituted as a Committee of the Whole. There were also estab- 
lished a Credentials Committee, a Drafting Committee, and a Com- 
mittee on Style. 

The final session of the Conference was held on December 1, 1959. 

As a result of the deliberations of the Conference, as recorded in 
the summary records and reports of the respective Committees and of 
the Plenary Sessions, the Conference formulated and submitted for 
signature on December 1, 1959, the Antarctic Treaty. 

The Conference recommended to the participating Governments 
that they appoint representatives to meet in Washington within two 
months after the signing of the Treaty and thereafter at such times 
as may be convenient, pending the entry into force of the Treaty, 
to consult together and to recommend to their Governments such 
interim arrangements regarding the matters dealt with in the Treaty 
as they may deem desirable. 

5 62 Stat. 1681. 



292 

IN WITNESS WHEREOF, the following Plenipotentiaries sign 
this Final Act. 

DONE at Washington this first day of December, one thousand 
nine hundred and fifty-nine, in the English, French, Russian and 
Spanish languages, each version being equally authentic, in a single 
original which shall be deposited in the archives of the Government 
of the United States of America. The Government of the United 
States of America shall transmit certified copies thereof to all the 
other Governments represented at the Conference. 

TEXT OF ANTARCTIC TREATY 

The Governments of Argentina, Australia, Belgium, Chile, the 
French Republic, Japan, New Zealand, Norway, the Union of South 
Africa, the Union of Soviet Socialist Republics, the United Kingdom 
of Great Britain and Northern Ireland, and the United States of 
America, 

Recognizing that it is in the interest of all mankind that Antarctica 
shall continue forever to be used exclusively for peaceful purposes 
and shall not become the scene or object of international discord; 

Acknowledging the substantial contributions to scientific knowl- 
edge resulting from international cooperation in scientific investiga- 
tion in Antarctica ; 

Convinced that the establishment of a firm foundation for the con- 
tinuation and development of such cooperation on the basis of freedom 
of scientific investigation in Antarctica as applied during the Inter- 
national Geophysical Year accords with the interests of science and 
the progress of all mankind ; 

Convinced also that a treaty ensuring the use of Antarctica for 
peaceful purposes only and the continuance of international harmony 
in Antarctica will further the purposes and principles embodied in 
the Charter of the United Nations ; 

Have agreed as follows : 

Article I 

1. Antarctica shall be used for peaceful purposes only. There shall 
be prohibited, inter alia, any measures of a military nature, such as 
the establishment of military bases and fortifications, the carrying 
out of military maneuvers, as well as the testing of any type of 
weapons. 

2. The present Treaty shall not prevent the use of military per- 
sonnel or equipment for scientific research or for any other peaceful 
purpose. 



293 

Article II 

Freedom of scientific investigation in Antarctica and cooperation 
toward that end, as applied during the International Geophysical 
Year, shall continue, subject to the provisions of the present Treaty. 

Article III 

1. In order to promote international cooperation in scientific in- 
vestigation in Antarctica, as provided for in Article II of the present 
Treaty, the Contracting Parties agree that, to the greatest extent 
feasible and practicable : 

(a) information regarding plans for scientific programs in 
Antarctica shall be exchanged to permit maximum economy and 
efficiency of operations ; 

(b) scientific personnel shall be exchanged in Antarctica between 
expeditions and stations ; 

(c) scientific observations and results from Antarctica shall be 
exchanged and made freely available. 

2. In implementing this article, every encouragement shall be given 
to the establishment of cooperative working relations with those 
Specialized Agencies of the United Nations and other international 
organizations having a scientific or technical interest in Antarctica. 

Article IV 

1. Nothing contained in the present Treaty shall be interpreted as : 

(a) a renunciation by any Contracting Party of previously as- 
serted rights of or claims to territorial sovereignty in Antarctica ; 

(b) a renunciation or diminution by any Contracting Party of 
any basis of claim to territorial sovereignty in Antarctica which it 
may have whether as a result of its activities or those of its nationals 
in Antarctica, or otherwise ; 

(c) prejudicing the position of any Contracting Party as regards 
its recognition or non-recognition of any other State's right of or 
claim or basis of claim to territorial sovereignty in Antarctica. 

2. No acts or activities taking place while the present Treaty is in 
force shall constitute a basis for asserting, supporting or denying a 
claim to territorial sovereignty in Antarctica or create any rights of 
sovereignty in Antarctica. No new claim, or enlargement of an exist- 
ing claim, to territorial sovereignty in Antarctica shall be asserted 
while the present Treaty is in force. 



294 

Article V 

1. Any nuclear explosions in Antarctica and the disposal there of 
radioactive waste material shall be prohibited. 

2. In the event of the conclusion of international agreements con- 
cerning the use of nuclear energy, including nuclear explosions and 
the disposal of radioactive waste material, to which all of the Con- 
tracting Parties whose representatives are entitled to participate in 
the meetings provided for under Article IX are parties, the rules 
established under such agreements shall apply in Antarctica. 

Article VI 

The provisions of the present Treaty shall apply to the area south 
of 60° South Latitude, including all ice shelves, but nothing in the 
present Treaty shall prejudice or in any way affect their rights, or the 
exercise of the rights, of any State under international law with 
regard to the high seas within that area. 

Article VII 

1. In order to promote the objectives and ensure the observance 
of the provisions of the present Treaty, each Contracting Party 
whose representatives are entitled to participate in the meetings 
referred to in Article IX of the Treaty shall have the right to desig- 
nate observers to carry out any inspection provided for by the present 
Article. Observers shall be nationals of the Contracting Parties 
which designate them. The names of observers shall be communi- 
cated to every other Contracting Party having the right to desig- 
nate observers, and like notice shall be given of the termination of 
their appointment. 

2. Each observer designated in accordance with the provisions of 
paragraph 1 of this Article shall have complete freedom of access 
at any time to any or all areas of Antarctica. 

3. All areas of Antarctica, including all stations, installations 
and equipment within those areas, and all ships and aircraft at 
points of discharging or embarking cargoes or personnel in Antarctica, 
shall be open at all times to inspection by any observers designated 
in accordance with paragraph 1 of this Article. 

4. Aerial observation may be carried out at any time over any or 
all areas of Antarctica by any of the Contracting Parties having the 
right to designate observers. 

5. Each Contracting Party shall, at the time when the present 
Treaty enters into force for it, inform the other Contracting Parties, 
and thereafter shall give them notice in advance, of 



295 

(a) all expeditions to and within Antarctica, on the part of its 
ships or nationals, and all expeditions to Antarctica organized in 
or proceeding from its territory ; 

(b) all stations in Antarctica occupied by its nationals; and 

(c) any military personnel or equipment intended to be intro- 
duced by it into Antarctica subject to the conditions prescribed in 
paragraph 2 of Article I of the present Treaty. 

Article VIII 

1. In order to facilitate the exercise of their functions under the 
present Treaty, and without prejudice to the respective positions of 
the Contracting Parties relating to jurisdiction over all other per- 
sons in Antarctica, observers designated under paragraph 1 of Article 
VII and scientific personnel exchanged under subparagraph 1(b) 
of Article III of the Treaty, and members of the staffs accompany- 
ing any such persons, shall be subject only to the jurisdiction of the 
Contracting Party of which they are nationals in respect of all acts 
or omissions occuring while they are in Antarctica for the purpose 
of exercising their functions. 

2. Without prejudice to the provisions of paragraph 1 of this 
Article, and pending the adoption of measures in pursuance of sub- 
paragraph 1(e) of Article IX, the Contracting Parties concerned 
in any case of dispute with regard to the exercise of jurisdiction in 
Antarctica shall immediately consult together with a view to reach- 
ing a mutually acceptable solution. 

Article IX 

1. Representatives of the Contracting Parties named in the pre- 
amble to the present Treaty shall meet at the City of Canberra within 
two months after the date of entry into force of the Treaty, and there- 
after at suitable intervals and places, for the purpose of exchanging 
information, consulting together on matters of common interest 
pertaining to Antarctica, and formulating and considering, and 
recommending to their Governments, measures in furtherance of the 
principles and objectives of the Treaty, including measures regarding : 

( a ) use of Antarctica for peaceful purposes only ; 

(b) facilitation of scientific research in Antarctica ; 

(c) facilitation of international scientific cooperation in 
Antarctica ; 

(d) facilitation of the exercise of the rights of inspection pro- 
vided for in Article VII of the Treaty ; 

(e) questions relating to the exercise of jurisdiction in 
Antarctica ; 



296 

(f) preservation and conservation of living resources in 
Antarctica. 

2. Each Contracting Party which has become a party to the present 
Treaty by accession under Article XIII shall be entitled to appoint 
representatives to participate in the meetings referred to in paragraph 
1 of the present Article, during such time as that Contracting Party 
demonstrates its interest in Antarctica by conducting substantial sci- 
entific research activity there, such as the establishment of a scientific 
station or the despatch of a scientific expedition. 

3. Reports from the observers referred to in Article VII of the 
present Treaty shall be transmitted to the representatives of the Con- 
tracting Parties participating in the meetings referred to in para- 
graph 1 of the present Article. 

4. The measures referred to in paragraph 1 of this Article shall 
become effective when approved by all the Contracting Parties whose 
representatives were entitled to participate in the meetings held to 
consider those measures. 

5. Any or all of the rights established in the present Treaty may be 
exercised as from the date of entry into force of the Treaty whether 
or not any measures facilitating the exercise of such rights have been 
proposed, considered or approved as provided in this Article. 

Article X 

Each of the Contracting Parties undertakes to exert appropriate 
efforts, consistent with the Charter of the United Nations, to the end 
that no one engages in any activity in Antarctica contrary to the prin- 
ciples or purposes of the present Treaty. 

Article XI 

1. If any dispute arises between two or more of the Contracting 
Parties concerning the interpretation or application of the present 
Treaty, those Contracting Parties shall consult among themselves 
with a view to having the dispute resolved by negotiation, inquiry, 
mediation, conciliation, arbitration, judicial settlement or other peace- 
ful means of their own choice. 

2. Any dispute of this character not so resolved shall, with 
the consent, in each case, of all parties to the dispute, be referred to the 
International Court of Justice for settlement; but failure to reach 
agreement on reference to the International Court shall not absolve 
parties to the dispute from the responsibility of continuing to seek to 
resolve it by any of the various peaceful means referred to in para- 
graph 1 of this Article. 



297 
Article XII 

1. (a) The present Treaty may be modified or amended at any time 
by unanimous agreement of the Contracting Parties whose representa- 
tives are entitled to participate in the meetings provided for under 
Article IX. Any such modification or amendment shall enter into 
force when the depositary Government has received notice from all 
such Contracting Parties that they have ratified it. 

(b) Such modification or amendment shall thereafter enter into 
force as to any other Contracting Party when notice of ratification by 
it has been received by the depositary Government. Any such Con- 
tracting Party from which no notice of ratification is received within 
a period of two years from the date of entry into force of the modifica- 
tion or amendment in accordance with the provisions of subparagraph 
1(a) of this Article shall be deemed to have withdrawn from the 
present Treaty on the date of the expiration of such period. 

2. (a) If after the expiration of thirty years from the date of 
entry into force of the present Treaty, any of the Contracting Parties 
whose representatives are entitled to participate in the meetings pro- 
vided for under Article IX so requests by a communication addressed 
to the depositary Government, a Conference of all the Contract- 
ing Parties shall be held as soon as practicable to review the operation 
of the Treaty. 

(b) Any modification or amendment to the present Treaty which 
is approved at such a Conference by a majority of the Contracting 
Parties there represented, including a majority of those whose repre- 
sentatives are entitled to participate in the meetings provided for 
under Article IX, shall be communicated by the depositary Govern- 
ment to all the Contracting Parties immediately after the termi- 
nation of the Conference and shall enter into force in accordance 
with the provisions of paragraph 1 of the present Article. 

(c) If any such modification or amendment has not entered into 
force in accordance with the provisions of subparagraph 1(a) of 
this Article within a period of two years after the date of its com- 
munication to all the Contracting Parties, any Contracting Party 
may at any time after the expiration of that period give notice to 
the depositary Government of its withdrawal from the present 
Treaty; and such withdrawal shall take effect two years after the 
receipt of the notice by the depositary Government. 

Article XIII 

1. The present Treaty shall be subject to ratification by the sig- 
natory States. It shall be open for accession by any State which 



607631—61 20 



298 

is a Member of the United Nations, or by any other State which 
may be invited to accede to the Treaty with the consent of ail the 
Contracting Parties whose representatives are entitled to participate 
in the meetings provided for under Article IX of the Treaty. 

2. Ratification of or accession to the present Treaty shall be effected 
by each State in accordance with its constitutional processes. 

3. Instruments of ratification and instruments of accession shall 
be deposited with the Government of the United States of America, 
hereby designated as the depositary Government. 

4. The depositary Government shall inform all signatory and 
acceding States of the date of each deposit of an instrument of 
ratification or accession, and the date of entry into force of the 
Treaty and of any modification or amendment thereto. 

5. Upon the deposit of instruments of ratification by all the sig- 
natory States, the present Treaty shall enter into force for those 
States and for States which have deposited instruments of accession. 
Thereafter the Treaty shall enter into force for any acceding State 
upon the deposit of its instrument of accession. 

6. The present Treaty shall be registered by the depositary Gov- 
ernment pursuant to Article 102 of the Charter of the United Nations. 

Article XIV 

The present Treaty, done in the English, French, Russian, and 
Spanish languages, each version being equally authentic, shall be 
deposited in the archives of the Government of the United States 
of America, which shall transmit duly certified copies thereof to 
the Governments of the signatory and acceding States. 

IN WITNESS WHEREOF, the undersigned Plenipotentiaries, 
duly authorized, have signed the present Treaty. 

DONE at Washington this first day of December, one thousand 
nine hundred and fifty-nine. 

For Argentina : 

Adolf o Scilingo 

F. Bello 
For Australia : 

Howard Beale 
For Belgium : 

Obert de Thieusies 
For Chile : 

Marcial Mora M. 

E.GajardoV. 

Julio Escudero 



299 

For the French Republic : 

Pierre Charpentier 
For Japan : 

Koichiro Asakai 

T. Shimoda 
For New Zealand : 

G. D. L. White 
For Norway : 

Paul Koht 
For the Union of South Africa : 

Wentzel C. du Plessis 
For the Union of Soviet Socialist Republics : 

V. Kuznetsov (Romanization) 
For the United Kingdom of Great Britain and Northern Ireland: 

Harold Caccia 
For the United States of America : 

Herman Phleger 

Paul C. Daniels 



APPENDIX M 

INDEPENDENT OR SEMI-INDEPENDENT STATES 
ESTABLISHED SINCE WORLD WAR II* 

(Prepared by William B. Stern, Foreign Law Librarian, Los Angeles County 
Law Library, December 23, 1959. Amended for the period 23 December 1959 
to 12 May 1961 by the Office of the Judge Advocate General of the Navy.) 

Burma (Union of) (Asia) UN, D 

Independent Republic, 1948 
Cambodia (Asia) UN, D 

Independence within the French Union, 1948 

Associate State within the French Union, 1949 

Financial and economic independence, 1955 
Cameroun (French) (Africa) UN, D 

Internal autonomy, 1959 

Independent Republic, 1960 
Central African Republic (Africa) UN, D 

Autonomous republic within the French Community **, 1958 

Independent Republic, 1960 
Ceylon (Asia) UN,D 

Independence within the British Commonwealth of Nations, 1948 
Chad (Africa) UN, D 

Autonomous republic within the French Community, 1958 

Independent Republic, 1960 
China (People's Republic) (Asia) 

Proclaimed, 1949 ; not recognized by the United States of America 
Congo (Republic of) (Africa) (Brazzaville) UN, D 

Autonomous republic within the French Community, 1958 

Independent Republic, 1960 
Congo (Republic of the) (Africa) ( Leopold ville) UN, D 

Independent Republic, 1960 



* Explanation of symbols : 
UN — Member of United Nations 

D — Has diplomatic representation of the United States of America 
C — Has consular representation of the United States of America 
**The "French Community" was established under the French Constitution of 
1958. 

300 



301 

Cyprus (Asia) UN, D 

Provisional government, 1959 

Independent Republic, 1960 
Dahomey (Africa) UN, D 

Autonomous republic within the French Community, 1958 

Independent Republic, 1960 
Eritrea (Africa) C 

Locally autonomous unit within the federation of Ethiopia and 
Eritrea, under Ethiopian sovereignty, 1952 
Gabon (Africa) UN, D 

Autonomous republic within the French Community, 1958 

Independent Republic, 1960 
Ghana (Africa) UN,D 

Independent state in the British Commonwealth of Nations, 1957 
Guinea (Africa) UN, D 

Independent Republic, 1958 
India (Asia) UN, D 

Sovereign democratic republic, a member of the British Common- 
wealth of Nations, 1950 
Indonesia (Asia) UN, D 

Sovereign independent republic, 1949 
Israel (Asia) UN, D 

Independent sovereign republic, 1948 
Ivory Coast (Africa) UN,D 

Autonomous republic within the French Community, 1958 

Independent Republic, 1960 
Jordan ( Hashemi te Kingdom of, formerly Transjordan) (Asia) UN, 
D 

Sovereign independent state, 1946 
Korea (People's Republic of) (Asia) 

Republic proclaimed by "Provisional Government," 1948; not 
recognized by the United States of America 
Korea (Republic of) (Asia) D 

Independent sovereign republic, 1948 
Laos (Asia) UN,D 

Independent state within the French Union, 1947 

Independent sovereign state within the French Union, 1949 

Independent sovereign state, 1954 
Libya (Africa) UN, D 

Independent sovereign federal kingdom, 1951 
Malaya (Federation of) (Asia) UN, D 

Sovereign member-state in the British Commonwealth of Nations, 
1957 



302 

Malagasy Republic (formerly Madagascar) (Africa) UN,D 

Autonomous republic within the French Community, 1958 

Independent Republic, 1960 
Mauritania (Islamic Republic of) (Africa) D 

Autonomous republic within the French Community, 1958 

Independent Eepublic, 1960 
Morocco (Africa) UN, D 

Independent monarchy, 1956 

International status of Tangier Zone abolished, 1956 
Niger (Africa) UN, D 

Autonomous republic in the French Community, 1958 

Independent Republic, 1960 
Nigeria (Federation of) (Africa) UN, D 

Self-governing Federation in the British Commonwealth of Na- 
tions, 1954 

Independent Federation, 1960 
Pakistan (Asia) UN, D 

Dominion in the British Commonwealth of Nations, 1947 

Islamic Republic, 1956 
Philippines (Asia) UN, D 

Independence, 1946 
Rhodesia and Nyasaland (Federation of) (Africa) C 

Largely self-governing, in the British Commonwealth of Nations, 
1953 
Sierra Leone (Africa) D 

Independent Republic, 1961 
Senegal (Africa) UN, D 

Autonomous republic within the French Community, 1958 

Independent Republic, 1960 
Singapore (Asia) C 

Self-governing colony in the British Commonwealth of Nations, 
1959 
Somali (Africa) UN, D 

Italian trusteeship of Somaliland, 1950 Independent Republic, 
1960 
Sudan (Republic of the) (Africa) UN, D 

Sovereign independent republic, 1956 
Togo (Africa) UN, D 

Autonomous republic in the French Community (under Trustee- 
ship), 1956 

Independent Republic, 1960 
Tunisia (Africa) UN, D 

Sovereign independent monarchy, 1956 

Sovereign independent republic, 1957 



303 

United Arab Republic (Africa and Asia) UN, D 

Formed of Egypt and Syria, 1958 
Upper Volta (Africa) UN, D 

Autonomous republic within the French Community, 1958 

Independent Republic, 1960 
Viet-nam (Democratic Republic of) (Asia) 

Formed by Vietminh, 1946 ; not recognized by the United States 
of America 
Viet-nam (Republic of) (Asia) D 

Independent within the French Union, 1949 

Independence, 1954 
The West Indies (Caribbean area) C 

The West Indies, Federation in the British Commonwealth of 
nations, 1958 



APPENDIX N 
HOW WIDE THE TERRITORIAL SEA?* 

I. The Background and the Vote — 1960 Conference 

By 

Captain ROBERT D. POWERS, JR., U.S. Navy 

and 

Captain LEONARD R. HARDY, U.S. Navy 

At 10:30 on the morning of 26 April 1960, an atmosphere of the 
utmost tension prevailed in the Palais des Nations in Geneva. For 
the third time, representatives of the nations of the world were voting 
on proposals to fix the breadth of the territorial sea. As the voting 
ended, a hush fell over the Assembly Hall and then the President of 
the Conference announced the vote on the U.S. -Canadian proposal 
which had been adopted in Committee. The vote stood 54 for the 
proposal, 28 against, with five abstentions. For the third time since 
1930 the representatives of the nations of the world were unable to 
reach agreement on the width of the marginal sea; this time by a 
margin of one vote. 

During the 1958 Geneva Convention on the law of the sea it became 
apparent that the customary 3-mile limit for the width of the terri- 
torial sea was unacceptable to many nations of the world. At the end 
of the Conference it was evident that although the United States 
and other maritime nations maintained that three miles continued to 
be the limit in the absence of an international convention, the real con- 
test at the 1960 Conference on the territorial sea and fisheries would 
be between proponents of a 6-mile limit and a 12-mile limit. At the 
1958 convention, Dr. Bocobo, the Philippine delegate, wittily la- 
mented the death of Mr. Three-Miles, who had served the interna- 
tional community so well and so long, and said that his heirs, Mr. Six- 
Miles and Mr. Twelve-Miles, were quarreling over his estate. 

Unable to reach agreement on the breadth of the territorial sea and 
the limits of fisheries control, the 1958 Conference postponed the argu- 
ment for a later conference, and proceeded to adopt conventions on 
the freedom of the High Seas, Fishing and Conservation matters, the 



*Reprinted by permission from Proceedings ; Copyright © 1961 by U.S. Naval 
Institute. 

304 



305 

Continental Shelf, and the Territorial Sea and Contiguous Zone 
(without fixing territorial sea or fishery limits). The conventions 
adopted were of great importance and constitute a signal advance in 
the codification of the international law of the sea.** 

The General Assembly of the United Nations, at its thirteenth 
session decided that a second international conference "should be 
called for the purpose of considering further the questions of the 
breadth of the territorial sea and fishery limits," and the Secretary 
General of the United Nations set 17 March 1960, as the date for the 
convening at Geneva of this second conference on the law of the sea. 

The diversity of claims and the differences in ideology and eco- 
nomics had been shown by the positions taken at the 1958 conference. 
At the opening of that conference, 21 nations claimed a 3-mile mar- 
ginal sea, 17 nations claimed four to six miles, 13 claimed seven to 12 
miles, and nine nations claimed the sea above the continental shelf, 
some of these to a distance of 200 miles. 

The 3-mile limit, as a rule of international law, was based upon the 
customs and practices of the more powerful maritime nations and 
was first proposed in 1703 by the legal writer, Bynkershoeck. It as- 
serted that the extent of a nation's dominion over the sea was measured 
by its ability to control from land, and that the test of this ability 
was the range of cannon which was then about three nautical miles. 
During the 18th and 19th centuries and the first quarter of the 20th 
century, the United States, Great Britain, Germany, Japan, and other 
naval powers accepted three miles as the limit of the territorial sea. 
Some nations claimed four or six miles and Russia claimed 12, yet in 
practice and in books on international law, three miles was the widest 
breadth that had general acceptance. 

During the period of the development of the 3-mile limit, many 
of the now independent members of the United Nations were colonies 
or dependencies of the larger powers. Many others were undeveloped. 
These nations, proud of their sovereignty and jealous of anything that 
smacks of "colonialism," desire to extend the limits of their legal con- 
trol as far as possible. Many of them have small navies and a little 
merchant marine and the freedom of the high seas is theoretical and 
of small practical value to them. On the other hand they want to 
prevent stronger nations from approaching their shores and catching 
the fish swimming in adjacent waters. 

The first documentation of the diversity in claims to the territorial 
sea was made at the 1930 Hague Conference for the Codification of 
International Law. There three miles was acknowledged as a mini- 



**See Professional Note, "The Geneva Conferences on the Law of the Sea," 
U.S. Naval Institute PROCEEDINGS, April 1960, page 133. 



306 

mum but there was no agreement as to the maximum. Seventeen 
nations claimed a 3-mile limit, 17 nations favored a four to 6-mile 
limit, and one nation favored a 12-mile limit, while the U.S.S.R. con- 
fined itself to this statement, "Use of international maritime water- 
ways must under no conditions be interfered with." 

ANGLO-AMERICAN COMPROMISE REJECTED 

At the 1958 conference, the United States and Great Britain, hoping 
to obtain agreement by compromise, offered a proposal for a 6-mile 
limit, with an additional 6-mile zone of fishing control, with preser- 
vation of historic rights for nations whose nationals had engaged in 
fishing within 12 miles of another nation for five years or more. This 
proposal was generally accepted as a sincere effort to secure agreement 
and stop the scramble of many nations to restrict the freedom of the 
high seas. It secured 45 votes for, to 33 against, but did not secure 
the two-thirds majority necessary for adoption. The Soviet proposal 
that each state could establish its own territorial sea within the limits, 
as a rule, of three to 12 miles was rejected by a vote of 21 for, to 47 
against. 

During the two years between conferences, preparations for the 
showdown at the 1960 conference were made by many nations. The 
United States, firmly convinced that six miles was the outer limit 
consistent with security and the limitations of neutrality patrol, and 
fortified by the support for its compromise proposal at the 1958 con- 
ference, had its representatives from the Navy and from the Depart- 
ment of State visit nations all over the world to secure support for the 
6-mile limit with six more miles of fishing control. 

While the United States preferred a retention of a 3-mile limit for 
the marginal sea, analysis of the voting at the 1958 convention re- 
vealed that such a limit had no reasonable chance of approval at an in- 
ternational convention. The Soviet Union and its satellites could 
not be expected to vote for any limit less than 12 miles. Their aim 
was to try to reduce the effectiveness of the sea power of the free world 
nations by an extension of sovereignty into the high seas, which in 
addition to removing a vast area from the free high seas would con- 
vert all important international straits into territorial waters. The 
mobility of free world navies and merchant ships is one of the greatest 
restraints to the announced campaign of the Soviets for world 
domination. 

The Arab states, emotionally opposed to Israel and hoping to close 
the Gulf of Aqaba and prevent commerce from reaching the Israeli 
port of Elath by sea, also were expected to support a 12-mile limit. 



307 

Mexico, Ecuador, Peru, and Chile all indicated a tendency to support 
a minimum zone of 12 miles, primarily to protect fishing. 

A total of 22 to 24 states of the United Nations were therefore ex- 
pected to support a 12-mile limit, while slightly more than two-thirds 
of the states appeared from their voting record to be willing to accept 
six miles as the width of the marginal sea, but the problem of getting 
them to do so involved consideration of the limits of fisheries control. 
The last conference indicated that there was broad disagreement on 
this issue, but practically all of the states willing to accept a 6-mile 
limit had voted either for the U.S. or for the Canadian proposal. The 
single difference between these proposals was in the control of fisheries 
in the 6-mile fishing control zone adjoining the 6-mile territorial sea. 
The U. S. proposal would have preserved the historic rights of other 
nations to fish in the area of the second 6-mile marginal zone forever, 
and the Canadian proposal would have abolished such rights 
immediately. 

Fishing rights were therefore an important item at the 1960 con- 
ference, for to many countries they are extensive and economically 
important. Nationals of some countries have fished to within three 
miles of the coasts of other countries for hundreds of years. Immedi- 
ate loss of this right to fish would have resulted in severe economic 
dislocation and hardship to the nationals of many countries, among 
them the United States and several western European nations. Can- 
ada, Iceland, Denmark, Norway, and a few smaller states had exten- 
sive foreign fishing off their coasts and wanted it stopped, though 
Denmark and Norway wished to continue to fish off the coasts of other 
nations. 

When the conference met, with 88 nations participating, 24 were 
aligned with the Soviet bloc favoring a 12-mile limit, about 20 nations 
wished control over a wide zone for fishing, and the remaining 44 na- 
tions were relatively unaffected by the fishing problem and inclined 
toward a narrow belt of territorial sea. It appeared that if the fish- 
ing problem could be solved, more than the two-thirds required ma- 
jority would accept a narrow limit of territorial waters as essential 
to the security of the free nations of the world. 

The United States accordingly sought a formula which would be 
a combination of the U.S. and Canadian proposals at the 1958 con- 
ference. While the United States still favored a belt of three miles, 
it was obviously impractical to start with such a proposal. The goal 
was to gain acceptance of a 6-mile limit, as it was the opinion of our 
military experts that the Soviet formula, permitting a zone of from 
3- to 12-miles at the option of the littoral state would be just as damag- 



308 

ing in effect to the security of the Free World as an absolute 12-mile 
zone. 

Pre-conference discussions with some 40 nations had shown that a 
marginal sea of six miles, plus six more miles of fishing control sub- 
ject to historic rights, had poor prospects for acceptance for many 
reasons, among them that Canada and other countries affected by 
foreign fishing would not accept perpetual preservation of historic 
fishing rights, and some of the newer nations of the world regarded 
such preservation as a vestige of colonialism. 

Discussion with the states engaged in foreign fishing indicated that 
they would not accept the 1958 Canadian proposal. The United 
States then discussed with Canada and the foreign fishing states a 
proposal which would include a 6-mile territorial sea and a 6-mile 
contiguous zone for fishing control in which foreign fishing would 
continue at the level of the 5 -year base period for a term of years to 
be determined at the Conference and then be terminated. Though 
pre-conference probings indicated that fishing nations were opposed 
to this, it appeared to be a reasonable method of allowing a satis- 
factory period for amortization of funds invested in fishing vessels 
and equipment. 

At the conference, the U.S.S.E. filed a proposal for a permissive 
3- to 12-mile zone of territorial waters, with provision that any state 
announcing less than a 12-mile zone could add the remaining area up 
to 12 miles as a fishing control zone. Mexico filed a proposal for a 
3- to 12-mile zone, but providing for a bonus if the territorial sea was 
kept narrow. A nation claiming up to six miles would have a total 
of 18 miles for fishing control, one claiming 6 to 9 miles would get 
six additional miles for fishing control, and nations claiming 12 miles 
would get no additional zone for fishing. 

Canada submitted the same six plus six miles as at the 1958 con- 
ference and the United States proposed the six plus six miles with 
preservation of historic rights maintained at the same level of fishing 
as during the 5-year base period. 

SOVIET BLOC CALLS 6-MILE LIMIT POLITICAL 

The supporters of the 12-mile proposals lined up solidly and it ap- 
peared that they might be able to get a majority vote in committee. 
To complicate matters, delegate Sen from India made an impassioned 
plea in an opening speech for adoption of a rule that would keep 
warships away from the coasts of small nations. The Soviet bloc 
of nations seized upon this and each strongly attacked the 6-mile 
limit on the basis that the large maritime powers wanted a narrow 



309 

belt of marginal sea in order to permit them to use their large navies 
to coerce small nations in political matters. 

The United States and the nations supporting a 6 -mile limit stres- 
sed the importance of a narrow territorial sea as a means of prevent- 
ing impairment of freedom of navigation. The 12-milers countered 
that the right of innocent passage was an answer to this argument, 
but Norway's representative stated that his country, as a small nation 
with a large merchant marine, knew from experience that the right of 
innocent passage will not protect merchant ships from harassment 
and interference through regulations and special controls. 

Representatives of the Soviet bloc repeatedly stated that any limit 
less than 12 miles was unrealistic and that the United States and other 
nations should "compromise" by accepting this limit. Delegate 
Drew of Canada in reply to this argument stated that while there was 
plenty of evidence of conciliation and compromise on the part of the 
3- and 6-mile nations there has been no sign of any proclivity to com- 
promise by those supporting a 12-mile limit. 

On 8 April, Canada and the United States having merged their 
proposals, Mr. Dean of the United States and Mr. Drew of Canada 
jointly introduced for their countries a proposal for a 6-mile marginal 
sea plus six additional miles for fishery control, with "historic fishing" 
to continue for ten years from 31 October 1961. This joint proposal, 
with withdrawal of the previous Canadian and U.S. proposal, ap- 
peared to be well received by a large number of delegations. 

MEXICO'S ROLE TO PREVENT AGREEMENT 

Nevertheless, the hard-core 12-milers, led by Garcia Eobles of 
Mexico, were openly determined to prevent conference agreement on 
any compromise proposal whatever, and took advantage of every possi- 
ble parliamentary maneuver to prevent the joint U.S. -Canadian pro- 
posal from securing the necessary two-thirds majority. 

In Committee, 18 nations from Africa, Asia, and South America 
introduced a proposal substantially the same as the Soviet proposal, 
and the U.S.S.R. and Mexico then withdrew their proposal. Thus 
only two principal proposals, the optional 3- to 12-mile limit and the 
U.S.-Canadian proposal of six miles plus six more miles for fishing 
control were voted upon on 13 April 1960. The 18-power proposal 
was defeated 36 for, and 39 against, with 13 abstentions. The U.S.- 
Canadian proposal was adopted by the committee by a vote of 43 for, 
33 against, and 12 abstentions. 

The committee therefore recommended to the conference adoption of 
the U.S.-Canadian proposal with a minor amendment which was de- 
signed to recognize Iceland's special case, but this amendment was 



310 

rejected in the later voting. In the plenary session, Mexico introduced 
a proposal that the conference agree that it could not agree and refer 
the matter back to the General Assembly of the United Nations. This 
was defeated. Brazil, Cuba, and Uruguay proposed authorization of 
arbitration commissions to hear and determine the validity of claims of 
a coastal state to preferential rights outside the territorial sea and 
contiguous zone, which was adopted as an amendment to the U.S.- 
Canadian proposal. 

Peru and Cuba proposed provisions for preferential treatment for 
a coastal state. Ghana offered a provision to require advance notifica- 
tion for the passage of warships through the territorial sea and the 
contiguous zone. These proposals were either withdrawn or rejected. 

A proposal was offered by Ghana, Liberia, and Ethiopia, urging that 
the United Nations give technical aid on fishing to undeveloped na- 
tions proved to be non-controversial, and this was adopted by 68 votes 
for, none against and 20 abstentions. 

The main debate therefore centered on the U.S.-Canadian proposal, 
but no matters of great interest were discussed, indicating that the na- 
tions were fairly well decided on how they would vote. The U.S.S.R. 
criticized the United States for trying to get votes for its proposal, and 
finally the Soviets and Saudi Arabia announced that even if there was 
agreement on a 6-plus-6-mile zone, they and some other nations would 
not accept such a zone. 

Immediately after the proposal was defeated (because it had re- 
ceived 54 votes when 55 were needed for the two-thirds majority re- 
quired for adoption) the United States moved for reconsideration, but 
this motion was defeated. 

The voting tally on the U.S.-Canadian proposal was as follows : 

FOE,: 54 Dominican Rep. 

Argentina Ethiopia 

Australia Finland 

Austria France 

Belgium Germany 

Bolivia Ghana 

Brazil Greece 

Cameroons Guatemala 

Canada Haiti 

Ceylon Holy See 

China Honduras 

Colombia Ireland 

Costa Rica Israel 

Cuba Italy 

Denmark Jordan 



311 



Korea 


Chile 


Laos 


Czechslovakia 


Liberia 


Ecuador 


Luxembourg 


Guinea 


Malaya 


Hungary 


Monaco 


Iceland 


Netherlands 


India 


New Zealand 


Indonesia 


Nicaragua 


Iraq 


Norway 


Libya 


Pakistan 


Mexico 


Paraguay 


Morocco 


Portugal 


Panama 


San Marino 


Peru 


Spain 


Poland 


Sweden 


Romania 


Switzerland 


Saudi Arabia 


Thailand 


Sudan 


Tunisia 


Ukrainian S.S.R. 


Turkey 


U.S.S.R. 


Union of So. Africa 


United Arab Republic 


United Kingdom 


Venezuela 


United States 


Yemen 


Uruguay 


Yugoslavia 


Vietnam 


ABSTAIN: 5 


AGAINST: 28 


Cambodia 


Albania 


El Salvador 


Bulgaria 


Iran 


Burma 


Japan 


Byelorussia 


Philippines 



Thereupon Mr. Dean made a statement that the United States had 
again offered a compromise to fix the breadth of the territorial sea 
which had failed of adoption by one vote. Since this compromise had 
been rejected, he said that the United States adhered to its traditional 
position that the customary 3-mile limit is the only breadth of the 
marginal sea sanctioned by international law. 

The conference adjourned without agreement on the width of the 
territorial sea, and varying claims as to its extent by different nations 
will continue. It does appear that the nations who seek a limit of 12 
or more miles have lost strength while the proponents of not more than 
six miles have gained. The 12-milers weakened their position by an- 
nouncing in advance that they would not accept a 6-mile limit were it 
adopted by two-thirds of the nations of the world. Agreement by the 



312 

representatives of 54 nations on a 6-mile zone plus six miles for fishing 
control will have a very significant effect on the future development 
of international law in this area, whether it be by court interpretation, 
custom, or a later treaty or action by the General Assembly of the 
United Nations. 

Meanwhile the United States is free to acknowledge only the custom- 
ary three miles as the limit of the territorial sea. 



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